human rights in russian regions
Transcription
human rights in russian regions
HUMAN RIGHTS IN RUSSIAN REGIONS Moscow 2003 The given publication was prepared within the Project Human Rights Monitoring Network in the Russian Federation implemented by the Moscow Helsinki Group in partnership with the International Helsinki Federation for Human Rights, the Netherlands Helsinki Committee, the Polish Helsinki Foundation for Human Rights and human rights organizations from 89 regions of the Russian Federation Financial assistance for the Project Human Rights Monitoring Network in the Russian Federation is provided by the European Commission For the given publication, the Moscow Helsinki Group also used materials and findings from its projects supported by the UK Foreign Office Human Rights Projects Fund and the USAID Chief Monitoring Coordinators: T. Lokshina, S. Lukashevskii Chief Editor: T. Lokshina Rendered into English by: MBS Intellect Services Inc. Translation and Interpretation Agency Editors: I. Sergeeva, J. DeVeny, S. Paul Layout and Design: N. Kostenko The views expressed herein are those of MHG and can therefore in no way be taken to reflect the official opinion of the European Commission The work by I. Makarevich has been used for the cover design Copyright © 2003 by Moscow Helsinki Group All rights reserved TABLE OF CONTENTS Introduction T. Lokshina, S. Lukashevskii 7 Main Tendencies that Influenced the Human Rights Situation in Russia in 2002 T. Lokshina, S. Lukashevskii..................................................................................................................9 I. Alternative NGO Report on Observance of ICCPR by the Russian Federation Introduction Moscow Helsinki Group ............................................................................................................................ 21 Summary Moscow Helsinki Group ............................................................................................................................ 22 Articles Article 2 Memorial Human Rights Center, Independent Council of Legal Expertise, Center for Assistance to International Protection.........................................................................26 Article 3 Moscow Helsinki Group .....................................................................................................................................34 Article 4 Memorial Human Rights Center..................................................................................................................36 Article 6 Memorial Human Rights Center, Center for Assistance to International Protection.........................................................................43 Article 7 Nizhnii Novgorod Committee against Torture.................................................................................49 Article 8 Memorial Human Rights Center, Moscow Helsinki Group .....................................................................................................................................54 Article 9 Center for Assistance to International Protection.........................................................................60 Article 10 Nizhnii Novgorod Committee against Torture.................................................................................68 Article 12 Memorial Human Rights Center, Moscow Helsinki Group .....................................................................................................................................73 Article 13 Memorial Human Rights Center, Moscow Helsinki Group .....................................................................................................................................79 Article 14 Center for Assistance to International Protection.........................................................................81 Article 17 Interregional Group “Human Rights Network”.............................................................................92 Article 18 Information Center SOVA, Moscow Helsinki Group .....................................................................................................................................95 Article 19 Glasnost Defense Foundation ........................................................................................................................98 Article 20 Information Center SOVA ............................................................................................................................105 Article 21 Movement for Human Rights.....................................................................................................................109 Article 22 Center for the Development of Democracy and Human Rights, Center of Social Labor Rights....................................................................................................................111 Article 23 Moscow Helsinki Group ..................................................................................................................................119 Article 24 Memorial Human Rights Center, Moscow Helsinki Group ..................................................................................................................................122 Article 25 Moscow Helsinki Group ..................................................................................................................................126 Article 26 Memorial Human Rights Center ..............................................................................................................129 Recommendations ....................................................................................................................................... 136 II. Situation of Most Vulnerable Groups and Minorities Discrimination against Women Introduction T. Lokshina, S. Lukashevskii ............................................................................................................ 151 Recommendations of the Moscow Helsinki Group and Regional Women’s Nongovernmental Organizations Based on the Monitoring Findings................................................................................................ 155 Discrimination against Women S. Lukashevskii, S. Kovaleva............................................................................................................. 159 Discrimination and Legislation .................................................................................................................159 Discrimination against Women in Elections ..................................................................................161 The Right to Participate in Government and Public Service........................................166 4 The Right to Equal Access to Education .........................................................................................168 The Right to Equal Opportunity in Access to Employment............................................171 The Right to Equal Opportunity in Acess to Promotion....................................................180 The Right to Equal Pay..................................................................................................................................183 The Right to Social Security ......................................................................................................................191 The Rights of and Special Benefits to Pregnant Women ..................................................197 The Right to Free Obstetric Care ..........................................................................................................202 Domestic Violence................................................................................................................................................208 Sexual Violence (Extra-Familial) ............................................................................................................213 Road to Equality and Discrimination On the Basis of Sex L. Zavadskaya................................................................................................................................................ 216 Anti-Discrimination Aspect of International Law N. Kravchuk..................................................................................................................................................... 226 The Plight of Women in Chechnya O. Trousevich.................................................................................................................................................. 231 List of Monitoring Participants ............................................................................................................................238 Thematic Essays The Status of Children N. Kravchuk..................................................................................................................................................... 241 The Status of National Minorities M. Manotskova............................................................................................................................................... 252 Ban on Instigation of War, Discrimination and Violence G. Kozhevnikova........................................................................................................................................... 262 The Status of Sexual Minorities A. Sutyagin....................................................................................................................................................... 273 Annex List of Regional Organizations-Members of the Human Rights Monitoring Network: ..................................................................................283 INTRODUCTION In following its tradition of many years, the Moscow Helsinki Group is proud to present to the attention of the general public, authorities, and the expert community its fifth annual compilation entitled “Human Rights in Russian Regions.” The reader will immediately notice that this publication significantly differs from corresponding reports published previously. Our previous compilations under the same title were all-Russia reports covering the entire spectrum of human rights and based on regional monitoring findings. This time we decided to radically change the structure of the compilation. One of the main reasons is that in the summer of 2003 the UN Committee on Human Rights was to consider the Fifth Periodic Report of the Russian Federation on its implementation of the International Covenant on Civil and Political Rights (ICCPR). ICCPR was ratified in 1973 by the Soviet Union, and was inherited by the Russian Federation as the legal successor of the USSR. Of all the international obligations assumed by Russia in the sphere of human rights, ICCPR is the cornerstone document. It includes a list of fundamental rights and freedoms, such as the freedom from torture and cruel and degrading treatment, the freedom of speech, the freedom of conscience, the right to private life, etc. The UN Committee on Human Rights monitors the implementation of the obligations assumed by the Covenant member states. Once every five years the Committee collects reports from the Covenant member states on their observance of the Covenant provisions within the last period. Reports are considered at special sessions, at which the Committee makes recommendations to member states. Many member states delay the submission of their periodic reports for a long time. For example, the report of the Russian Federation in this case covered almost two report periods, and the Committee was looking forward to receiving it. As soon as the report was finally received the Committee scheduled its review for its next session, for July 15—16, 2003 to be precise. Russian NGOs were also looking forward to the review of the Fifth Periodic Report of the Russian Federation. The Committee on Human Rights, just like other UN treaty bodies, conducts a direct dialogue with the member states, and the role played by nongovernmental organizations is to provide UN experts, on a timely basis, with an alternative view on the issue in order to enable them to form an objective opinion on how member states implement their obligations with respect to this international agreement. This is done by submitting alternative reports to the treaty bodies. The Alternative Report on the International Covenant on Civil and Political Rights was prepared by a coalition of NGOs that consisted of: Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance to International Protection, Nizhnii Novgorod Committee against Torture, Information Center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of Legal Expertise, Interregional Group “Human Rights Network,” the Movement for Human Rights, and the Center of Social Labour Rights. 7 Given that the Moscow Helsinki Group and the human rights monitoring network of regional organizations that it coordinates have been systematically reporting on the human rights situation in Russia since 1998, the Moscow Helsinki Group not only contributed several articles to the Alternative Report, but it also coordinated the entire effort in general, and was responsible for the final editing and compilation of the final document. The Alternative Report includes materials that were produced by regional human rights organizations — members of the MHG network, and others — in 1998—2002. In early June 2003 the Alternative Report was forwarded to the Committee experts. On July 11 representatives of some of the human rights NGOs that contributed to the writing of this report were to arrive in Geneva to meet a number of experts, hold a briefing for the Committee, etc. However, several days before the hearings were to begin, the Russian Government asked the Committee to put off the consideration of its periodic report, having justified this request by the fact that it had not succeded in getting ready to the presentation of its own report. The Committee reacted to this radical decision by our Government, which violates diplomatic etiquette, with sharp criticism.1 This resulted in an unprecedented situation: despite that the review of the report of the Russian Federation was postponed until autumn, the Committee experts deemed it appropriate to hear out Russian human rights activists and their Alternative Report.2 During the briefing Russian human rights activists raised such issues as the human rights situation in the Republic of Chechnya, non-implementation of the Committee’s decisions on individual complaints by Russia, violations of the right to life, torture, discrimination, persecution of nongovernmental organizations, and the inadequacy of the court system from the standpoint of human rights protection, etc. The experts asked a number of questions that demonstrated their concern with the raised issues. All the experts highly praised the Alternative Report of the Russian human rights activists, and emphasized the quality and objectivity of the information contained therein, as well as the relevance of the examples. Working on the report, the NGO coalition analyzed an enormous amount of material on violations of human rights, which took several years to collect. Understanding the importance of this job we initially decided that in our compilation an alternative report would replace the traditional all-Russia annual report on the human rights situation. The unprecedented events that unfolded around the alternative report, and the high esteem in which it was held by the experts confirmed that we right to make that decision. Nevertheless, the compilation starts out with an overview of the primary trends that affected the development of the human rights situation in 2002. The overview is followed by the Alternative Report on the observation of the International Covenant on Civil and Political Rights by the Russian Federation. The last section of the compilation is dedicated to the status of vulnerable population groups and minorities. The most significant material provided in this section is a report on the situation with discrimination of women in Russia that was prepared by the Moscow Helsinki Group together with regional women’s organizations in 20 subjects of the Russian Federation. It is followed by a series of articles on the status of children and national, religious, and sexual minorities. 1 First, the Committee decided that in the future if a Covenant member state does not submit a timely request for permission to postpone the consideration of its report (i. e., if such a request is received less than two months before the appointed date) the Committee may ignore this request and consider the report even in the absence of the governmental delegation. Second, the Committee emphasized that the Russian report will be considered in October regardless of circumstances, and any additional postponement was out of the question. 2 The Committee Chairman, A. Amor, was specific about noticing their presence in the auditorium, and emphasized the important role that NGOs play in the overall operation of the UN system of human rights protection. He also stressed that the Committee had to protect the interests of NGOs, in particular when NGOs, whose resources are very limited, fall victim to instantaneous decisions [whims?!] of member states. 8 MAIN TENDENCIES THAT INFLUENCED THE HUMAN RIGHTS SITUATION IN RUSSIA IN 2002 Chechnya in 2002 Russian Authorities justify blatant mass violations of human rights in the Chechen Republic by their struggle against terrorism, and they stress that they actually fight international terrorism. But as far back as 2001, and we noted that in our previous report, the situation in the region was actually mothballed and has remained unchanged. Chechnya witnesses disappearances of civilian people, violence, and looting which have become commonplace. It should be noted that gross human rights violations are committed not only by representatives of the federal forces, in particular during socalled mop-up operations (zachistki), but also by the paramilitary formations they oppose. Suffice it to recall the never ending mop-up operations in Chechen villages — four during only September-May, 2002, according to the “Memorial” Human Rights Center, (Mesker-Yurt (May-June); Chechen-Aul (June); Tevzeny (August); Tsotsin-Yurt (September). Three operations resulted in a loss of life and in disappearances of civilian population, and in all the cases numerous occurrences of cruel and degrading behavior of the enforcement structures and looting took place. Speaking about mop-up operations it is essential to underscore that Order #80 issued on March 27, 2002 by Commander-in-Chief of the Joint Command Lieutenant-General V. Moltensky which stipulates strict operation procedures, is generally ignored. This can be proven by relevant data collected by “the Memorial” Human Rights Center. Despite the fact that the number of initiated criminal cases related to crimes against civilians considerably increased, so far not a single official who was in charge of the mop-up operations, which resulted in mass and gross violations of rights of civilians, has been held responsible, and investigation into most cases has been suspended. Such a situation supports the climate of impunity, and promotes the uncontrollability of enforcement structures. The only adequate solution to the situation could be the termination of mop-up operations. Yet, despite repeated promises on the part of the authorities, nothing of the kind has happened. On the other hand, the civilian population dies as a result of subversive activities against federal forces. For instance, on September 16, in Grozny, an explosive device, apparently planted to destroy a truck with Russian soldiers, went off several minutes earlier when a passenger bus was pass- 9 ing by. The explosion killed eight people, including two children, and injured 24. Despite the tragedy of the Chechnya population suffering attacks from both sides, and the nearly absolute absence of any progress in the way of a peaceful conflict settlement, the authorities tried to create the impression in society that the problem is multi-facetted, that there has been progress in resolving the issue, that federal forces are coping with the situation gradually, and that the course taken by the authorities is the only correct one. This task predetermined the information policies of the federal authorities: maximal filtration of information coming from Chechnya, stress on building peaceful life there and the restoration of social structure, and information and propaganda support for federal forces operations. The attention of the world community towards human rights violations in Chechnya dwindled considerably after September 11. In the spring of 2002, the UN Commission on Human Rights failed to adopt a Russia/Chechnya resolution (in contrast to 2000 and 2001), and thus, the problem of the Chechen conflict left the agenda of this major international human rights forum. The USA and some European Union states started to close their eyes to the Russian policy in Chechnya, which was pictured as part of the general struggle against international terrorism. In Russia, on the other hand, according to the All-Russian Center of Public Opinion Studies (VTsIOM), the percentage of Russian citizens who are in favor of peaceful talks with Chechnya went up from 51% to 57% during January-September of 2002 alone. The population which supported combat operations actively in 2000 (at that time 70% supported the continuation of combat operations), in 2002, despite an aggressive propaganda campaign, apparently favored the termination of the war in Chechnya. But the terrorist attack in Moscow in October, 2002 reversed the trend. According to a poll conducted in late October, only 44% supported peaceful talks, as opposed to the 57% that had manifested their support for negotiations earlier during the year. 49% were of the opinion that federal forces “are not tough enough” in Chechnya.1 Terrorism In fact, Russian authorities used the international terrorism issue to smooth over their own position concerning the Chechnya conflict, the separatism problem, and the need to look for a separate settlement for Chechnya. But here Russian policy fell into the trap it had set itself. Terrorist attacks (particularly, on May 9 in Makhachkala (Dagestan) and especially in Moscow on October 23—26) clearly showed the calm and self-confidence demonstrated by the authorities are quite illusory. In this context, it must be noted that the Chechen military formations deliberately resort to gross violations of human rights (of the civilian population!) in their confrontation with federal authorities. Events in Makhachkala and Moscow differ in principle from the subversive operations in Chechnya, because those terrorist attacks were targeted against civilians, rather than against federal forces. 1 VTcIOM. Special issue. October 29, 2002. 10 The police operations conducted by federal forces to do away with the Chechen resistance are accompanied with mass and flagrant violations of human rights, and at the same time are incapable of guaranteeing security for the Russian population in the face of terrorist attacks. Two reports about “the destruction of Movsar Barayev” did not prevent him from successfully taking hostages in Moscow in October 2002. Authorities Response On October 23, 2002, several dozen terrorists seized the building of the socalled Theater Center on Dubrovka in Moscow during the jubilee performance of a popular “North-East” musical. Over 800 spectators and company members were taken hostage. The crisis lasted for three nights and two days. The terrorists stated that the building had been mined, and that the explosion would kill at least everybody inside the building. The key demand of the terrorists was to stop the war in Chechnya, and have Russian troops withdrawn from the Chechen Republic. Some public and political figures tried to negotiate with the terrorists, and their attempts resulted in the release of 98 refugees — basically women, children, and foreigners. On the morning of October 26, special forces of the Federal Security Service (FSB) stormed the building using special chemicals (gas). According to the official information, 129 hostages died — only five of them killed by terrorists — and nobody was “missing in action.”2 All the terrorists, 41 persons, were killed during the assault. Two hundred commandos were involved in the assault from the anti-terrorist groups of FSB, no one was seriously injured. In spite of the massive loss of life among hostages, the authorities’ representatives praised the operation, referring to the losses as inevitable, and discarding any doubt as to the efficiency of the special forces and other operation services. Minister of Internal Affairs, B. Gryslov, called the operation “concerted and effective.” Right after the operation, Deputy Minister of Internal Affairs, V. Vasilyev, stated that, “There was information that a lot of people died as a result of the use of some special means during the operation. This is not true.” To support the statement, V. Vasilyev said that no one out of the 104 taken to War Veterans hospital #1, was diagnosed as “poisoned.” FSB Director, N. Patrushev, also spoke about the “concerted, well- coordinated work of all the structures.” Moscow Mayor, Yu. Luzhkov, stated that the operation to release the hostages “was brilliant,” and A. Kadyrov, the Chechnya administration head, maintained that “no other operation in the world could compare to this one in terms of its professionalism and effectiveness.” With these statements as a background, the mass media also circulated information that makes one doubt that the operation was well-coordinated and impeccable. And the words about special means having nothing to do with the hostages’ deaths look unacceptable indeed. 2 There was information alternative to official: a list of 70 missing persons was made. And the authorities displayed no initiative to find anything out in the situation, confining to replies that according to official data no one was missing. 11 As early as October 27, Chief Physician of Moscow, A. Selysovsky, confirmed that nearly all the hostages who died were poisoned “by a special gas.” He also noted that prior to the assault medics had not been informed of the nature of the special means to be used during the operations.3 The gas itself was not poisonous, but its side effects could cause “cardiac, respiratory, and perfusion insufficiency,” which became the direct cause of death. It is interesting that prior to the operation, on October 24, former head of the Third Department of KGB, Vice Admiral A. Zhardetsky, stated in his interview with the INTERFAX new agency that in the case that gas were used, children and people suffering from chronic diseases of the respiratory tract and cardiovascular system would be practically doomed. If a former KGB member had such information, operations headquarters personnel were bound to have it, and the hostages’ condition could not have been a surprise to them. In this situation, the numerous errors in the evacuation and in the rendering of first aid could not be explained. Having analyzed several interviews with commandos, EMERCOM people, and doctors, we can state the following: • Personnel of the special forces were not briefed on the first aid techniques for people affected by the “special gases” (some people died because their bodies were not in the correct position while being taken out of the building, and they suffocated). Rescuers were not allowed to take part in the evacuation of hostages immediately after the operation, which slowed down the process and prevented it from being conducted as professionally as it could have been. Rescuers, in their turn, had not been warned about the use of the gas, and they did not have adequate first aid means. • • The same applies to ambulance doctors who were on duty outside the theater building during the operation, namely in that they did not have enough antidotes initially. For instance, I. Nazarova, Chief Physician of the All-Russia Center of Medical Response to Catastrophes Hospital commented, “We did not know what kind of means had been used during the operation. It was only on the site that we realized that gas had been employed.”4 One of the medics who participated in the rescue said, “We had expected mine explosion injuries. As far as I know there had been no instructions for the hospitals to have stocks of some specific medicine.”5 Even part of the assault force did not get essential information and equipment. Fast Response Special Detachment of the Ministry of Internal Affairs (MVD SOBR) fighters were poisoned by the gas (though not so badly as the hostages) when they entered the hall where the hostages were kept. Some medics maintain that the massive loss of life occurred because of the lack of medical transportation vehicles, and due to the transfer of hostages in ordinary buses (which precludes any treatment on the move, besides which there were no assigned medics in those buses). Others say that there were enough ambulances but “traffic was hampered — an excessive concentration of various vehicles were blocking each other’s way.” 3 4 5 News.Ru (October 27, 2002). News.Ru (October 28, 2002). E.Vrantseva, “Were Sorted Out by Alive – Not Alive Principle,” Gazeta.Ru (October 29, 2002). 12 There were some mistakes in the organization of grouping victims according to their state of health. Indirectly it is proven by the fact that some hostages who were alive were transported together with dead bodies. Besides which, hostages not wearing their overcoats were put on the ground to determine their state of health at freezing temperature, which in some cases resulted in pneumonia. But even in this context, there is neither criticism nor any willingness at the official level to find out the reasons for such errors and the lack of coordination in the rescue operation. Moreover, the authorities do not consider it necessary to start an open investigation with public involvement. On the other hand, the State Duma voted against the Union of the Right Forces (SPS) to conduct a parliamentary investigation. SPS, having obtained the President’s consent, performed their own investigation. Since this investigation was informal, SPS did not have the opportunity to get testimony from all the officials they wanted. Nevertheless, the conclusions drawn by the commission on the rescue operation, on the whole, reflect the situation described above. It should be noted, though, that the commission praised the conduct of special forces, and placed the blame for the deaths on specific ministries and departments which were responsible for “social and medical assistance to people.”6 We agree with the statement that the civilian structures must be prepared for any consequences of terrorist attacks, but in this case it is obvious that one of the main causes for the loss of life was the lack of coordination between military and civilian authorities, and it was the military structures that failed to provide adequate information to civilians, which was indispensable for proper organization of aid to the victims. In any case, despite the pessimistic conclusions of the commission, the authorities are very unlikely to agree to public reconsideration of the operation results. At least, due to the fact that the commission’s conclusions were not a surprise for the federal authorities. When B. Nemtsov summarized the investigation results for President Putin at the November 14 meeting, he heard the following response, “Whatever you are saying is very close to what I know.”7 In fact, everything mentioned above makes us think that while organizing the move only one component of the operation was given due attention — the destruction of the terrorists and the prevention of an explosion. That is why, despite statements in favor of the hostages’ release being a top priority task, this mission was actually treated as a secondary one.8 Without attempting to offer recommendations for an effective counter-terrorist struggle we are compelled to state that in the case of the Moscow terrorist attack of October 23—26, 2002, we witnessed a gross violation of the right to life. 6 “We Cannot Allow Such Mistakes to be Made in the Future,” http://www.sps.ru (October 28, 2002). 7 Sergei Parkhomenko, Alexander Ryklin, “Amendments to the Terrorist Attack,” Ezhenedelny Zhurnal (#46). 8 An indirect confirmation of such a conclusion are the event which followed the assault, when in the interests of the investigation information on the fate of hostages became classified for several days, which caused panic among relatives, brought about public tensions and partially contributed to the appearance of the victims list whose reliability was not proven. 13 * * * Realizing that many mistakes made during the operation became known thanks to mass media coverage, which was non-stop during the operation, using not only official information sources, and later collecting reports of eye-witnesses, negotiators etc., the authorities wanted to guarantee positive coverage of similar events should they happen in the future. Right after the attack, pro-governmental forces in the State Duma came out with an initiative to amend the legislation on fighting terrorism with provisions aimed at restricting freedom of speech in situations of counterterrorist operations. In particular, there were proposals to expand the ban on terrorism propaganda, or the justification of terrorism or extremism in mass media outlets and other sources of information, up to the ban on information “which serves as propaganda or justification of extremist activities, including that containing utterances aimed at precluding counterterrorist operation, propaganda, and/or justification of resistance to the conduct of a counter-terrorist operation.” The application of such an amendment is broader than it might appear on the surface — we must remember that the war in Chechnya is formally a counter-terrorist operation, conducted on the basis of the law on terrorism, and if such an amendment was enacted, any attempts to organize a comprehensive discussion of the Chechnya issue in the press would become illegal. With record-breaking haste these amendments were approved by the State Duma and the Federation Council. But apparently realizing that such legislation would be too notorious, the authorities responded to the call on the part of a group of key mass media outlets’ leaders (including a number of stateowned), and the President vetoed the bill. But the amendments themselves did not disappear. They were forwarded to a special conciliatory commission and now no one can say with certainty if they will be adopted in a milder form later on or just remain dangling over the head of the mass media like the sword of Damocles. In any case, journalists promised the President to develop self-regulation mechanisms to apply to the coverage of anti-terrorist operations. However, we hold a little reservation: though we wholeheartedly support all initiatives of the journalistic community aimed at self regulation, in these particular circumstances journalists’ good will seems to be obtained through blackmail. * * * Moscow law enforcement bodies, incapable of preventing the large-scale terrorist attack in downtown Moscow, were trying to prove their efficiency during the crisis and especially during first weeks after the assault in their usual manner. Just like after the explosion of apartment buildings in Moscow in the fall of 1999, the capital saw a wave of “checks” on people from the Caucasus. Apart from the traditional street ID checks, police were visiting apartments, searching, and arresting people. It goes without saying that Chechens were the first victims of such practices. The legal aid clinic of the Civic Assistance Committee9 alone received about 40 complaints against arbitrary conduct by the police. According to the organization leader, Svetlana Gannushkina, they registered six episodes of initiating false criminal cases related, as a rule, to drugs. Besides this, there are cases 9 A prominent Moscow-based human rights NGOs working on the rights of refugees and migrants. 14 of people being fired by employers and Chechen children being expelled from school.10 One of the most shocking cases in this vein is the arrest of Ya. Neserkhaeva, a Chechen young woman living in Moscow, who also happened to be a hostage at the theater center . She did not reveal her origin in solidarity with the Russian girl friend with whom she had come to see the musical.11 Directly from the hospital where she had been taken after the assault, she was brought to jail hospital #20, and from there straight to a pre-trial detention facility. There, she was finger-printed, then photographed, and her voice was recorded. She was kept in jail for ten days (the maximum term if no charge is brought) without being interrogated even once. Finally, she was released with no charge brought against her. There is every reason to believe that she was freed thanks to the active involvement of a number of human rights organizations and highly professional lawyers. Also, we cannot fail to mention the arbitrary detention of A. Gelagoev on October 25, that is, before the storm of the building. According to him, in the police vehicle, a bag was put over his head and then he received a cruel beating. The police were shouting, “You hate us and we hate you! We will do you in!” In the Moscow City Police Department (GUVD), they tried for several hours to make him sign the text of his “confession,” which they had previously written, to the effect that he was “an ideological organizer of the terrorist attack.” Having failed, the police let him go, but only after he signed a paper stating that he came to Moscow GUVD of his own free will, and that he had no complaints. According to VTsIOM, 30% of the Russian population thinks that “the withdrawal of all Chechens from Moscow and other regions of Russia is the most effective way to ensure “security for people.”12 From the point of view of Russian human rights organizations, authorities do not take adequate measures to ensure the safety of ethnic groups. Russian and international experience shows that after a major terrorist attack an outburst of interethnic tension is inevitable. To prevent possible incidents, several public statements of a general nature are not enough. Moreover, some of these statements are at times rather ambiguous. Moscow Mayor, Yu. Lushkov, said, for instance, “We do not give any privileges to any nationality in Moscow. At the same time, we will not allow a negative attitude towards Caucasians.” Freedom of Speech The process of the creation of a new information environment that was initiated by the Administration of President Putin and that significantly limits the freedom of mass information appears to have completed at the federal level in 2002. By 2000, the situation in the sphere of television broadcasting was as follows: two of the four television channels broadcasting in the meter-length wave diapason and covering the widest audience were controlled by busi10 “Oppression of Chechens in Moscow.” Prima (November 5, 2002). From the very onset terrorists expressed readiness to release all Chechens, Georgians and Abkhasians. 12 VTsIOM. Muscovites about North-East Hostages. 11 15 nessman B. Berezovsky (ORT and TV-6), the NTV television company was part of the “Media-Most” holding owned by V. Gusinsky, and the RTR was a state-owned channel. In 2000, claiming to have been pressured by the Presidential Administration, B. Berezovsky was forced to sell his shares and give up control over the open joint stock company “Public Russian Television” (ORT) in favor of the state.13 On April 14, 2001, following a lengthy confrontation between the semi-state company “Gazprom”14 and the “Media-Most” holding, the new NTV management, which in fact had been put together by the “Gazprom-Media” company, escorted by their security service occupied NTV premises, and on November 27, 2001, in accordance with a court ruling, the “Gazprom-Media” obtained the control packet of NTV shares. In the same year, the private pension fund “Lukoil-Garant,” owner of 15% of shares of the MNVK — the holder of the broadcasting license of the TV-6 television company — initiated a lawsuit to liquidate the company (in compliance with Article 35 of Federal Law “On Stock Companies”) on the basis of the fact that company’s liabilities had been exceeding the overall value of its fixed assets for over two years. Article 35 had rarely been applied previously and was actually excluded from the new version of the law that entered force on January 1, 2002. But it was a sufficient formal reason for the Presidium of the RF Supreme Arbitration Court to decide on January 11, 2002, in favor of the liquidation of MNVK. On January 22, the Ministry of Press stopped the broadcasting of TV-6 even though the beginning of the company liquidation process did not automatically imply the loss of its broadcasting license. What deserves attention is not only the fact that the TV-6 television company was owned by B. Berezovsky, who had been in opposition to federal authorities since summer of 2000. It is also remarkable that the “LukoilGarant” filed its lawsuit soon after a group of NTV journalists led by Ye. Kiselyov (former Director General of NTV and TV-6) that had found itself at variance with the change of NTV management went to work for the TV-6, and Ye. Kiselyov was appointed acting Director General of the company. When the Ministry of Press deprived the TV-6 of its broadcasting license it announced a competition for the right to broadcast on the newly vacated frequency. The journalists of Ye. Kiselyov’s team registered the “TV-6” company to take part in the competition for the right to broadcast using the frequency previously occupied by MNVK. They were later joined by a group of prominent entrepreneurs including A. Chubais, head of the stateowned United Electric Systems of Russia (RAO EUS) company. Together they registered closed joint-stock company “Channel Six,” which submitted an application to take part in the competition. Later however, the group of competitors was joined by noncommercial partnership “Media-Socium” co13 Officially, the state owns 51% of ORT shares; B. Berezovsky sold 49% of the shares to R. Abramovich who in turn entrusted them with the “Savings Bank of Russia” (60,57% of its equity capital shares is owned by the RF Central Bank). The Board of Directors of this television company consists of a number of high-rank officials, including: first Deputy Minister of Property Relations of RF, A. Braverman, Press Secretary of the RF President, A. Gromov, and first Deputy Minister of the Press, Television and Radio Broadcasting and Mass Media, M. Seslavinsky. 14 37% of company shares are owned by the state. Representatives of the RF Government and the Presidential Administration constitute one half of the company’s Board of Directors. 16 headed by former Russian Prime-Minister, Ye. Primakov, and President of the Russian Union of Manufacturers and Entrepreneurs, A. Volskiy. Following a series of negotiations, “Channel Six” withdrew its application and joined the “Media-Socium” as a partner. It was “Media-Socium” that won the competition on March 27. The new and essentially the only private television channel, TVS, began its broadcasting on June 1, 2002. Theoretically, the TVS management structure (license holder — “MediaSocium,” investors and shareholders — a diverse group of businessmen and “Channel Six”) reduces the possibility of controlling the information policy of the channel by any single party. Still, the federal power whose representatives, including RF President V. Putin, according to unofficial mass media reports, took the most active part in putting together this management structure, is safeguarded from the appearance of an opposition television channel, because the TVS became controlled by a very diverse group of politicians and businessmen who could hardly ever be able to reach a tangible consolidation.15 In the meantime, the state essentially preserved control over the NTV television company. Notwithstanding numerous declarations of the “Gazprom” management, the NTV television company, as well as other media structures remained property of this company which had preserved 51% of its shares in the “Gazprom-Media.” The investor that bought 49% of shares of the “Gazprom-Media” was the “Eurofinance Bank” that had been established in 1990 by the Eurobank (a daughter company of the Central Bank of Russia16) and the Vneshtorgbank.17 Thus, in 2002, out of six meter-length wave television channels four were directly or indirectly controlled by the federal power (ORT, RTR, NTV, and Culture), one — by the Moscow government (TVC), and one – by politicians and prominent businessmen loyal to the Kremlin (TVS). All of the above does not mean that television journalists (primarily those working for NTV and TVS) did not allow themselves to criticize the policies of federal and other authorities. However, possibilities of the federal power to determine and influence information policies of television channels have significantly expanded in comparison with the B. Yeltsyn period.18 During 2002, mass media repeatedly reported on cases when following the airing of programs that criticized authorities officials of the Administration of the RF President and the Ministry of the Press coerced administrations and shareholders of respective television channels to change editorial policies or dismiss certain journalists. Mass media began to experience an especially strong pressure after the androlepsy crisis at the Dubrovka theater center in Moscow in October 15 It became obvious that the structure created by this method proved to be not compatible to life. Chanal TVS has existed only one year. On June 22, 2003 the Ministry of Print switched of the air. The main reasons were financial problems. But political motives cannot be excluded as well. 16 Back then – the Central Bank of the USSR. 17 Back then – the Vneshtorgbank of the USSR. 18 The same concerns the “Echo of Moscow” radio station. Although it has preserved its previous management and is conducting an independent information policy it cannot help considering the fact that the control packet of its shares belongs to the “Gazprom.” 17 2002. Mass media were publicly criticized by RF President V. Putin. When meeting with mass media representatives he accused some of them of “having deliberately ignored the agreements with the Ministry of the Press and the instructions of the operative headquarters which acted in strict compliance with the law on combating terrorism.”19 As it has been mentioned before, pro-government factions in the RF State Duma initiated the adoption of a number of amendments significantly restricting the freedom of speech which were approved by the Federation Council. The RF President however vetoed the draft legislation having suggested that the journalist community should independently develop corporate behavior rules.20 All of the above may be interpreted as not only authorities’ situational disapproval of activities undertaken by mass media which commented on the tragic events, including the actions of special law-enforcement troops, as well as showed interviews with hostages and their relatives, but also as a continuation of a consistent campaign to restrict the freedom of mass information. 19 “Putin Vetoes Amendments to Mass Media Law Approved by the Parliament.” NEWSru.com (November 25, 2002). 20 See section “Response of Authorities.” I ALTERNATIVE NGO REPORT ON OBSERVANCE OF ICCPR BY THE RUSSIAN FEDERATION INTRODUCTION The Alternative NGO Report on the Observance of the International Covenant on Civil and Political Rights (ICCPR) by the Russian Federation from the period of 1997 to 2002 has been prepared jointly by several Russian non-governmental organizations: Moscow Helsinki Group, Memorial Human Rights Center, Center for Assistance to International Protection, Nizhnii Novgorod Committee against Torture, Information Center SOVA, Center for the Development of Democracy and Human Rights, the Glasnost Defense Foundation, the Independent Council of Legal Expertise, Interregional Group “Human Rights Network,” the Movement for Human Rights, and the Center of Social Labour Rights. The Moscow Helsinki Group coordinated all work on the Alternative Report, and also assumed responsibility as the Report’s editor. The Alternative Report was submitted to the UN Human Rights Committee in connection with the Committee’s consideration of the Fifth Periodical Report of the Russian Federation on compliance with the International Covenant on Civil and Political Rights (ICCPR). The Alternative Report is intended to fill in certain gaps regarding the information provided by the Russian Federation to the Human Rights Committee, and to highlight issues pertaining to the observance of civil and political rights in Russia. While working on the Alternative Report we did not seek confrontation with the official position of the Russian Federation, and did not try to disprove the official information and conclusions they made. We do not deny that over the last five years a number of positive changes have taken place with regard to the observance of certain rights — primarily those concerning penitentiary standards and judicial reform. Our task was to present a position which differs from the official one in order to allow the Committee’s experts to form the fullest and most objective opinion of the problems in the observance of civil and political rights in the Russian Federation. For the same reason, in the Alternative Report we tried to avoid repeating general information presented in the Fifth Periodical Report of the Russian Federation. It must be noted that in the Alternative Report we intentionally did not comment on Articles 1, 5, 11, 15, 16 and 27—53 of ICCPR, as we did not deem it appropriate. The Alternative Report concludes with recommendations which cover all ICCPR articles commented on in the Report. The Alternative Report makes wide use of the information submitted by many Russian human rights organizations and other NGOs, with relevant sources indicated in the corresponding sections of the Report. The absence of a reference to the source of information means that the information was supplied by one of the aforementioned organizations which acted as contributing authors to the Alternative Report. For additional information please contact the Moscow Helsinki Group at [email protected]. 21 SUMMARY The 1993 Constitution of the Russian Federation includes the basic rights and freedoms proclaimed in ICCPR. Moreover, according to the Constitution (Article 12), the international obligations of the Russian Federation take priority over national law. However, despite the fact that the Constitution establishes the State’s obligation to observe and protect human rights (Article 2), both the bodies of power as a whole and their individual officials regularly violate the rights and freedoms of human beings and citizens. In some cases, one can speak about a consistent state policy of disregard for international and national standards in the field of human rights, when government agencies, primarily enforcement structures, are granted authority which is not clearly defined in legislation, resulting in the absence of real control over their activities. The most vivid manifestation of this trend is the situation in the zones of armed conflict in the Chechen Republic — a situation that was placed outside the framework of national and international law. This armed conflict, which has lasted for many years on a territory of 15 000 km2, entails widescale hostilities and the use of combat aviation, has led to the death of thousands of people, and is defined by authorities as a “counter-terrorist operation”1, thus bringing it out of the sphere of operation of international humanitarian law. In the territory of the Federation where this subject is concerned, a state of emergency has not even been officially declared. Under these conditions, and in the absence of any effective control, representatives from enforcement structures commit numerous crimes against civilians, and, in the course of special operations, lawlessness merges with criminal practices as such. Although the RF Constitution has “the highest legal force” and “direct action” (Article 15), the exercise of human rights and freedoms is often limited by insurmountable procedural restrictions. Thus, the liberty of movement and the freedom to choose one’s residence are extremely hampered by the passport system and registration regime. While under Federal Law “On the Right of Citizens to the Liberty of Movement and Freedom of the Choice of Residence within the Russian Federation” registration is provided for as a notification procedure, a multitude of formal conditions established by various bylaws and regulations for receipt of “registration at the place of residence” and “registration at the place of stay” allow the authorities to refuse registration without any valid reasons. Yet at the 1 This means that “the operation” is regulated by Federal Law “On Fighting Terrorism,” which essentially must deal with operations of a local nature according to their duration and territory. 22 same time, the absence of registration would be an administrative offence depriving a person, even a Russian Federation citizen, of the majority of their rights and social guarantees. The violation of civil and political rights by the authorities is largely made possible by the absence of effective control over their activity, ineffective judicial protection, and opposition to civilian oversight at both the legislative and executive levels. For instance, a draft law for civilian oversight of the observance of human rights at places of forced confinement has not been adopted to this day. In some spheres, gross violations of civil and political rights are committed on a wide scale. Over the past several years it was becoming increasingly clear that the policy of the bodies of power is to put the interests of the state (primarily issues connected with sovereignty and security, etc.) above the interests of the individual, including such fundamental individual rights as the right to life. Apart from the long-lasting Chechen campaign, characterized by a disproportionate use of force, out-of-court executions, torture and cruel treatment, and other blatant violations of the population’s human rights, the latest event which vividly evidences this trend is the situation centered around the capture of hostages by terrorists at the theater center on Dubrovka (Moscow, October 23—26, 2002). As the authorities made it their main objective to annihilate the terrorists, the operation carried out to seize the theater center resulted in the death (not at the hands of the terrorists) of over 120 hostages, according to official data. Because the law enforcement structures concentrated on the preparation of the attack and did not coordinate their efforts with the other participants in the operation, including members of the rescue services and medics, and because of the use of “special means,” the operation took a heavy toll on life which could have been avoided. Meanwhile, top-officials of the Ministry of Internal Affairs and the Federal Security Service insist that the operation was well coordinated and ended successfully (as all the terrorists were killed). The official standard by which the work of law enforcement bodies and special services is evaluated is the number of crimes exposed and cases solved. This is one of the main reasons why officials from corresponding departments use unlawful methods in their work, ranging from procedural infractions and falsification of cases (spy cases, cases against Chechens charged with drug trafficking, unlawful possession of arms, etc.) to the use of torture. Sometimes, “in the interests of investigation,” people are kept in pre-trial detention for years. In 1994, summarizing the results of his visit to Russia as a UN Special Rapporteur on Torture, Nigel S. Rodley described the condition of prisoners in Russian pre-trial facilities as “shocking,” “particularly inhumane,” “cruel, degrading,” and “torturous.”2 Since that time, and particularly after the Chief Department for Penalty Execution was placed under the jurisdiction of the RF Ministry of Justice, the situation has somewhat improved. However, harsh prison conditions, coupled with the indiscriminate use of confinement, occasionally for long periods of time, are still utilized by law enforcement authorities with the aim of “breaking the will” of the prisoners “with the intention of eliciting confessions and information”3 — from this standpoint, these measures remain torturous. 2 Report of the Special Rapporteur, N. Rodley, submitted pursuant to Commission on Human Rights Resolution 1994/37, E/CN.4/195/31. Add. 1, November 16, 1994. 3 Ibid. 23 The judicial system does not provide effective protection for the victims of these and other human rights violations. The courts are dependent on the executive power for financing. Also, the executive branch has quite an impact on the formation of the judicial bench.4 Besides, true to the tradition formed in Soviet times, judges continue to see themselves as part of the state machinery, and, in most cases, show solidarity with the state prosecution5 or, as the case may be, with the government agency officials whom laypersons try to bring to justice. Internal monitoring of the executive power is ineffective because of the strong corporate solidarity among officials from different departments, with the existing bureaucratic system often resulting in the fact that a complaint of abuse from officials is considered and acted upon by the high-ranking officials from the same organization where the subject of the complaint works. Moreover, the district-level prosecutor’s office, which, among other things, is responsible for the examination of claims of torture of detainees, persons under investigation, and witnesses, is at the same time the body charged with investigation — in close cooperation with the police — of criminal cases in the course of which such torture and cruel treatment are used by the police. As far as law enforcement officials’ use of torture and other prohibited methods is concerned, the Chechen Republic represents a kind of experimental site through which units of the Ministry of Internal Affairs pass by rotation, sharing in the practices of violence, outrage, lawlessness, and impunity. After coming back from Chechnya, these enforcement body officials use this experience in their own regions. On top of that, the ongoing conflict in the Chechen Republic greatly fosters the ethnic discrimination which has become a norm in the behavior of government officials and the public at large in Russian regions. In the Russian Federation, it is generally the Chechens and Caucasians who often fall victim to unlawful police action6 and various practices employed by government agencies that restrict their liberty of movement and freedom of the choice of residence. These practices, in turn, restrict access to many rights and social guarantees. From the standpoint of discrimination, a very special situation has taken shape in the Krasnodar territory, where the authorities consistently pursue a policy aimed at ousting the Meskhetian Turks from the region. Since 1989 they have refused to grant Meskhetian Turks residence permits, and since 1991 deny them registration and Russian citizenship, using this to systematically oppress and restrict the rights of this group. The federal authorities, on their part, do nothing to check the lawlessness of the Krasnodar authorities, and grant the Meskhetian Turks Russian citizenship, to which they are entitled because they came to the territory of Russia before the entry into force of the 1991 Federal Law “On Citizenship of the Russian Federation.” 4 Preliminary discussion of candidates for judges' positions is carried out by the Commission under the President of the Russian Federation (Presidential Decree #1185 of October 4, 2001) which is dominated by the representatives of the enforcement structures and officials of the President’s Administration. Out of 17 members of the Commission, five members represent the prosecutor's office, the Ministry of Internal Affairs and other law enforcement bodies, and seven members represent the presidential structures; the judicial bench is represented by merely three members. 5 Up to 2002, the proportion of verdicts of not guilty did not exceed 1%. According to the latest data, this figure has slightly increased and is now 2%. However, many experts from the legal community believe that this improvement is unstable. 6 Ranging from unlawful detention and extortion to falsification of criminal cases. 24 Such a position on the part of the federal authorities comes as no surprise in light of the latest legislative innovations in the sphere of citizenship and migration — namely the new Federal Laws “On Citizenship of the Russian Federation” and “On the Legal Status of Foreign Nationals,” which entered into force in 2002. At present, thousands of citizens of the former USSR (according to some authorities, this group includes anywhere from half a million to over three million people) who have received neither Russian nor any other citizenship, mainly due to the difficulties of the bureaucratic procedure, reside permanently on the territory of Russia. Under the old (1991) citizenship law, such people were entitled to a simplified procedure for receipt of Russian Federation citizenship and the Soviet passport remained a legal form of personal identification. However, the new citizenship law does not provide for a simplified procedure for citizens of the former USSR to receive Russian Federation citizenship (with the exception of certain groups), and under the newly adopted Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” citizens of the former USSR run into unsolvable problems when trying to receive a residence permit and may be deported. As of 2004, when Soviet passports will no longer be valid as a legal form of identification, these persons will find themselves in a complete legal vacuum. In a brief assessment of the situation regarding the observance of civil and political rights in Russia one cannot help but note the consistent deterioration of the conditions in spheres as fundamentally important for the subject of political rights as freedom of speech and the electoral process. In 2000, the ubiquitous practice of regional authorities pressuring independent media has been elevated to the federal level. Control was established over all federal TV channels, and the print media that remain independent have to work cautiously, mindful of the position of the President’s Administration. The institution of elections is becoming increasingly quasi-democratic and quasi-competitive as a result of the executive power’s unlawful interference on all levels of the electoral process. Often, citizens are offered to elect candidates de facto, one of whom is “doomed to win.” Real competitors are barred from participation in the election campaign by means of administrative levers, or have to face various obstacles when campaigning. Election commissions and courts often show bias in such cases. Voting results are sometimes rigged, but such falsifications rarely make it to court. All these and other negative trends in the observance of ICCPR in Russia have been described in detail in our Alternative Report. We hope that the Alternative Report will be useful for the experts of the Human Rights Committee in facilitating constructive dialog between the Committee and the Government of the Russian Federation. ARTICLES ARTICLE 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Paragraph 1, Article 19 of the 1993 RF Constitution declares that “all people are equal before law and in a court of law.” Paragraph 2, Article 19 envisages that: The state shall guarantee the equality of the rights and liberties of a human being and citizen irrespective of sex, race, nationality, language, origin, property status and official position, place of residence, attitude towards religion, convictions, membership in public associations as well as other circumstances. All forms of restriction of civil rights on account of social status, race, nationality, language or religion are banned. Under Paragraph 2, Article 17 of the RF Constitution, “the basic rights and liberties of a human being are inalienable and belong to everyone from birth.” Paragraph 3, Article 55 declares that “Human rights and civil liberties may be restricted by the federal law only to the extent required for the protection of the fundamentals of the constitutional system, morality, health, rights and lawful interests of other persons, for ensuring the defense of the country and the security of the state.” Under Paragraph 3, Article 62: Foreign citizens and stateless persons enjoy in the Russian Federation the rights of its citizens and bear their duties with the exception of cases stipulated by federal law or the international treaty of the Russian Federation. Standards proclaiming the equality of human rights and civil liberties regardless of nationality, skin color, language, religion, social origin or other circumstances are also found in this branch of legislation. However, neither the Constitution nor current legislation provide for a direct ban on discrimination, offer any effective remedies against discrimination, or provide reimbursement for damage inflicted.1 Unfortunately, in practice, one observes continuous deviation from the principles of the inalienability, universality, and equality of one’s basic rights and liberties. Most notable is the public authorities’ (both state and munici1 Also see the section on Article 26 of ICCPR in this report. 26 pal) non-recognition of the basic rights and liberties of large categories of persons, and their discriminatory treatment of such persons on the following grounds: 1. 2. 3. 4. 5. non-availability of identification papers; place of residence (registration of residence); citizenship; ethnicity; membership in public associations. 1. The non-availability of identification papers to a person within the boundaries of the Russian Federation, irrespective of his/her citizenship (including a person whose RF citizenship is not challenged by authorities), implies his/her inability to exercise in full the rights guaranteed under Articles 9 (1), 12 (1 and 2), 14, 16, 17, 23 (2), 24, 25 of ICCPR. In practice, the only document identifying him/her as citizen of the Russian Federation within the boundaries of the country is a regular domestic passport of a Russian citizen.2 A person who has no passport is restricted in his/her freedom of movement, specifically, as he/she finds himself/herself, in accordance with the RF Government’s March 11, 1999 Decree #277, in no position to acquire railway or air tickets, as he/she has no right to obtain a passport for traveling abroad, and, consequently, to leave the country. Such a person is also deprived of the right to choose a place of residence since he/she is unable to register himself/herself at his/her place of residence. He/she may, by administrative order, be detained, virtually without the right of appeal, for a period of up to 30 days “to establish his identity.” He/she also suffers restrictions as far as access to justice is concerned as the courts won’t accept civil suits, complaints, or applications from persons not possessing passports for domestic use. In the absence of a passport, one finds it impossible to register his/her marriage. A person without proper identification papers comes under restrictions concerning the right of access to information inasmuch as, according to the established practice, one may not become a member of a public library without a passport. In the absence of a passport, a citizen may not take part in elections or be employed at a job in civil or municipal service. In theory, every citizen of the Russian Federation who has reached the age of 14 is not only entitled, but obligated to obtain a passport for domestic use, and is free to do so regardless of the availability of registration of residence. In practice, however, due to numerous insurmountable conditions of procedure existing within the passport system, and also because of the established administrative practice, one quite often finds it impossible to obtain a passport in the absence of registration of residence at any point in the territory of the country. For instance, obtaining a passport is often a problem confronting persons recently released from prison who, for whatever reason, have lost their certificate of release. It is important to note that if a citizen has permanent registration anywhere in Russia, he/she finds himself/herself unable to obtain or re-establish a passport at any place in the country other than the place of his/her permanent registration. For instance, this problem is very relevant for persons with residence registration in the Chechen Republic who have left the territory of the Republic, as even a short-term trip back there is dangerous for them. 2 To travel abroad, a Russian citizen must have a traveling passport (“foreign passport” — in literal translation from Russian). 27 A similar situation is that of many Russian citizens who formally reside permanently outside the Russian Federation, possess a passport for traveling abroad (but no domestic passports since although they are Russian citizens they are not residents of the Russian Federation, and their travel passports bear the stamp “for permanent residence abroad”), and now intend to officially transfer their residence to Russia. In theory, RF citizens moving into the country from abroad are provided with the possibility to obtain temporary registration to use in order to acquire a domestic passport. In practice, inasmuch as a RF passport for traveling abroad is not an identification document within the boundaries of the Russian Federation, citizens of the country arriving from other states, including but not limited to constituent parts of the former USSR, are quite often unable to legalize themselves in the territory of their own country of citizenship. 2. Regional statutory acts and nationwide law enforcement traditions lead to the fact that a RF citizen residing in a region, or even locality (city, village, settlement) of the Russian Federation without registration in that particular region or locality enjoys quite a different (significantly more limited) scope of rights and liberties in comparison with another RF citizen having local registration. Moreover, many citizens are compelled to reside at a certain place as they, either objectively, i. e., by no fault of their own, fail to meet the requirements of the passport system, or are arbitrarily denied registration by authorities. The restrictions imposed for reasons of registration are mainly related to social and economic rights (the right to work, to dispose, possess, and use property, to social security, and medical service), although they also tend to affect civil and political rights — the right of entering into marriage, of inviolability of private and family life, of access to justice, of participation in elections. 3. Apart from statutory legal distinctions between the rights of the RF citizens and those of aliens, there exist numerous unjustified restrictions regarding foreign nationals, stateless persons, and also persons not recognized arbitrarily by authorities as citizens of the Russian Federation. Such restrictions mainly concern the rights protected under Article 12 of ICCPR.3 Citizens of the Russian Federation that are in the situation of being stateless persons, i. e., those actually not recognized as RF citizens, are unable to receive identification papers. There also exist several categories of citizens of the former USSR who cannot be citizens of any other state except the Russian Federation (primarily, Meskhetian Turks residing in the Krasnodar territory) and who, according to the established practice, are denied having their former Soviet passports exchanged for the new Russian ones. For example, a resident of Russia who used to reside in some region of Russia under temporary registration at the time of entry into effect (February 6, 1992) of the 1991 Law “On Citizenship of the Russian Federation,” and who is presently residing under temporary registration or without registration altogether, is in no position to receive a passport of the new type. December 31, 2003 is the final date of expiry of the 1974-type USSR passports, after which date there will emerge a considerable layer of the population virtually deprived of all their rights. Moreover, the authorities are applying arbitrary criteria not based on law to qualify the stay of a person in the Russian Federation as “illegal,” which 3 See the section on Article 12 of ICCPR in this report. 28 serves as the ground for non-recognition of their basic rights and liberties. The lack of registration of residence or stay, whatever the reason for that may be, whether the element of guilt is present or not, is taken as an administrative offence, with an issue of administrative offence superseding that of the lawfulness of stay in the territory of the country. Not recognized, contrary to law, as citizens of the country and treated as “illegal immigrants,” former Soviet citizens, not having infringed upon any formal legal requirements, find themselves deprived not only of the right to liberty of movement and choice of residence, but also of rights such as the liberty and inviolability of person, access to justice, and the inviolability of dwelling. Under the 2002 Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation,” foreigners residing in the Russian Federation on a temporary residence permit are formally deprived of the right to move with the aim of changing the place of residence outside the subject of the federation specifically allocated to them. By implication of the law, they are also deprived of the right to change their place of residence altogether, as they are unable to change their registration of residence. Foreign nationals permanently residing in the Russian Federation suffer restrictions as to the right to leave the country: they have to obtain exit visas. Stateless persons permanently residing in the Russian Federation are virtually deprived of the right to exit the Russian Federation since “A”- series identification certificates issued to them have not been introduced to the international community. Citizens of the former USSR holding former USSR passports with no indication therein of their contemporary citizenship, have been deprived of the right to cross the state border, i. e., to exit the country, since the mid 90-s. 4. Some ethnic groups in the country have been subjected to continuous discrimination to the point of non-recognition of their basic rights and liberties. As a rule, such discrimination is based on denial of registration of residence and control over compliance with the regime of registration. The authorities of the Krasnodar territory, with the overt backing of federal authorities, have been pursuing a policy of persecution and ousting of the Meskhetian Turks from the territory of Russia. This policy entails denying them registration of residence, which, consequently, results in restrictions being placed on all basic rights. It is noteworthy that the registration in the Krasnodar territory is denied not only to the Meskhetian Turks who are not recognized by territorial authorities as Russian citizens (i. e., those who have settled in the Krasnodar territory right after their organized evacuation from Uzbekistan), but also to those Meskhetain Turks who have obtained registration and legalized their Russian citizenship in other RF regions, yet want to permanently reside in, and therefore register for residence in, the Krasnodar territory. Chechens are continuously subjected to discrimination, persecution, and restriction of rights throughout the country; of special concern is the practice of fabricating criminal cases against Chechens, and then convicting them on obviously trumped-up charges.3 A serious problem is posed by the discriminatory treatment practiced by law enforcement authorities with regard to ethnic minorities, primarily nationals of the Caucasus, Central Asia and also the Roma, which is manifested in arbitrary identification checks, the search of living premises, and 3 See the section on Article 26 of ICCPR in this report. 29 detentions, i. e., infringement upon the rights protected under Paragraph 1, Article 9 and Article 17 of ICCPR. 5. Discrimination on grounds of membership in public associations is evidenced by preference in the access to civil service (i. e., concerning exercise of the right protected under Paragraph 3, Article 25 of ICCPR), which the state offers to members of Cossack organizations. The Cossack movement is campaigning for the revival of a special paramilitary group that existed prior to 1917, and is also seeking special and sectional rights to be granted their members. By way of the 1996 Presidential Decrees #563 and #882, members of Cossack communities were granted special preferential access to civil and also other types of public service. The 1999—2001 Federal Program of Support of Cossack Communities endorsed in 1999 by Decision #839 of the RF Government once again confirmed an earlier official policy aimed at the integration of Cossack formations within structures of power, and at granting them privileges in regards to civil and other types of service. As a result, Cossacks enjoy a special mechanism of access to various types of service (civil service, including paramilitary and also municipal service). Cossack societies put on the register are free to make special agreements with the bodies of authority about doing service (law enforcement, military, etc.), and can offer up their candidates for certain offices. Meanwhile, the RF Constitution and legislation at all and any level provides for equal access to all types of service, regardless of origin and membership of any associations. Besides which, the 1991 RSFSR Law “On the Rehabilitation of Peoples Subjected to Repression” defined Cossacks as “a cultural ethnic community,” and equated them with ethnic groups. This position has been reaffirmed by several more recent statutory acts. Thus, the privileges granted to the Cossacks may, in a formal sense, be regarded as discrimination on ethnic grounds. * * * 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. Upon the 1993 adoption of the RF Constitution, the universally accepted principles and norms of international law and the international treaties of the Russian Federation became part of its legal system, and have prevailed over federal laws and laws of the subjects of the Russian Federation (Paragraph 4, Article 15 of the RF Constitution). The doctrine of transformation, implying the operation of ICCPR through national statutory acts, was substituted by the principle of direct operation of international treaties. Many Russian laws establishing the procedure for activities of bodies of state authority served to seal in a particular version the norms obligating those bodies to be guided by the international treaties of the Russian Federation (Article 1 of the RF Civil Procedure Code; Article 1 of the RF Criminal Procedure Code; Article 4 of Federal Law “On the Police” of April 18, 1991 (as amended on January 10, 2003); Article 3 of Federal Law “On the Prosecutor’s Office of the Russian Federation” of January 17, 1992 (as amended on October 5, 2002); Article 6 of Federal Law “On the Security” of March 5, 1992 (as amended on July 25, 2002); Article 4 of Federal Law “On the Bodies of the Federal Security Service in the Russian Federa30 tion” of April 3, 1995; Article 1 of Federal Law “On Fighting Terrorism” of July 25, 1998, etc.). Exceptions to this rule are represented by the following: legislation on the judiciary (Federal Constitutional Law “On the Judicial System of the Russian Federation” of December 31, 1996; Federal Constitutional Law “On the Constitutional Court of the Russian Federation” of July 21, 1994; Federal Law “On the Status of Judges in the Russian Federation” of 26 June 1992 (as amended on December 15, 2001); legislation on the operative and investigation of often secret activity (Article 4 of Federal Law “On the Operative and Investigation Activity” of August 12, 1995). These statutory acts make no mention of international treaties as sources of legal regulation. It should also be noted that Article 1 of Federal Law “On the Prosecutor’s Office” entrusts that body with an obligation to carry out supervision over compliance with only “the RF Constitution and the implementation of laws enforced in the territory of the Russian Federation,” rather than with international treaties. Russia’s criminal procedure legislation has come to adhere to the norms prescribing the resumption of proceedings in any case in which it has been established by the European Court of Human Rights that the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms have been violated by the RF courts during their consideration of a criminal case; such a decision by European Court is regarded as the so-called “new fact” (Article 413 of the RF Criminal Procedure Code). However, Russia’s legislation provides no mechanism as to how the acts of the UN Human Rights Committee may influence the procedure of revising judgments earlier rendered. The RF Constitutional Court has repeatedly referred to the provisions of ICCPR in its decisions and rulings. Rare references of a similar type are also found in decisions of the Plenum of the RF Higher Arbitration Court, and the Plenum of the RF Supreme Court; the Plenums’ decisions offer clarifications concerning issues of judicial practice (interpretations with regard to application of concrete legal norms) which are practically binding upon lower courts. Nevertheless, the judicial and law enforcement practices testify to the fact that, in cases of rivalry between international and national norms, the bodies of authority, courts, and law enforcement agencies, as a rule give preference to the provisions of national legislative acts and bylaws. The reason for such a situation is that in order to assess the performance of officials, judges, and law enforcers, departmental indicators are used, which do not allow for the observance of human rights to be considered as criterion of the assessment. Besides, the possibility for citizens to exert influence upon the activities of authorities, courts, and other governmental agencies is insignificant, and continues to diminish as a result of the consistent strengthening of control on the part of the executive branch over the formation and activity of courts, as well as because of the expansion of the executive branch’s practice of manipulating election campaigns and decisions of legislature. * * * 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; 31 (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. In the Fifth Periodical Report of the Russian Federation submitted to the UN Human Rights Committee, the government described a large number of newly-adopted statutory acts in the field of the organization of courts, which are to serve to guarantee human rights in the Russian Federation. Regrettably, the general law enforcement practice in the Russian Federation, according to various Russian human rights organizations, testifies to frequent violation of the majority of rights recognized under ICCPR. Since 1998 the Moscow Helsinki Group, in cooperation with regional human rights organizations in all 89 subjects of the Federation, has been conducting a systemic country-wide monitoring of the human rights situation, in the course of which cases of violation of the rights to non-judicial protection and fair trial have been recorded with distubing frequency. The fact that human rights violations in Russia are massive has been confirmed by findings from sociological research. According to the data of a survey conducted in December, 2001 by the ROMIR Independent Research Center, 72% of the respondents believe that, on the whole, Russia is in violation of basic human rights (a mere 22.2% have a different opinion).4 Besides, the trust of the population enjoyed by authorities on the whole and by judicial authority, in particular, is extremely low. Thus, the results of the sociological research conducted by the INDEM Foundation showed that 78.6% of the respondents do not rely on justice in a court of law.5 The reasons for this will be given in more detail in this report in the section on Article 14 of ICCPR. The effectiveness of legal remedies is made up of several components: the accessibility of those remedies to people; the powers of administrative, judicial and public forms of protection of human rights; the enforcement of decisions of administrative, judicial, and other bodies aimed at the protection of human rights and liberties. As to the accessibility of legal remedies, there is a wide range of state authority bodies that the RF citizens, as envisaged under the RF Constitution and other statutory acts, have the right to apply to for the protection of their rights and liberties. Unfortunately, application by itself does not imply that the applicant’s rights and liberties violated will be protected. The judicial procedure for the protection of human rights is a common one. However, the ineffectiveness of the judicial procedure for the protection of human rights is sometimes due to the unsatisfactory situation with the actual enforcement of rulings, especially when, in accordance with a ruling of a court of law, the state is obliged to make financial compensation or has other pecuniary liabilities. An example of such non-fulfillment of a judgment, in which the RF acts as the obliged party, is the Burdov v. Russia case, which was recently considered by the European Court of Human 4 5 See: www.romir.ru. See: www.indem.ru. 32 Rights (2002) with Russia found in violation of the European Convention (Article 6 and Article 1 of Protocol 1) and required to pay compensation to Burdov. Burdov’s specific debtor was the Social Security Fund, financed by the RF budget; nevertheless, within two years the local social security branch’s budget had been compiled without any regard for the indebted amount owed to Burdov. Therefore, Burdov had to appeal the actions of bailiffs by lodging a complaint with the European Court of Human Rights once again. The special mechanisms and bodies existing in the Russian Federation, such as the Ombudsman and the Presidential Human Rights Commission, also fail to meet the aforementioned three criteria for the effectiveness of remedies protecting human rights. To clarify, for victims of human rights violations, application to those bodies does not guarantee revision of a case in a court of law, or that any other actions will be taken by the authorized officials. The said bodies only have the right to request that the relevant agencies undertake certain actions. For instance, they may request that the prosecutor’s office initiate criminal proceedings or reconsideration of a case by exercising the prosecutor’s supervisory functions. Consequently, responses given by the Ombudsman or the Presidential Human Rights Commission have no legal force. Thus, on the basis of data available to human rights organizations, one may speak of the insufficient effectiveness of protection of human rights in the Russian Federation both at the legislative, administrative, and judicial level. It should be pointed out that the Russian Federation has assumed the obligation to comply with the jurisdiction of the UN Human Rights Committee, as directly stipulated not only under ICCPR, but also under the Optional Protocol thereto, i. e., the RF has recognized its citizens’ right to apply on an individual basis to the UN Human Rights Committee, as well as the competence of this body to consider applications against the violation of human rights by Russia. As of now, the Committee has found and examined two complaints on their merits lodged against the Russian Federation under the violations of human rights — namely, Gridin v. Russian Federation and Lantsov v. Russian Federation. In the Gridin v. Russian Federation case (in the year 2000) it was found that the right to a fair trial had been violated, in so far as the failure to provide security for the rights of the defendant and conditions for impartial court proceedings are concernced. The Committee required that the Russian Federation restore the right that had been violated by providing Gridin with effective remedies that would secure his immediate release from custody and payment of compensation. Up to now, the Russian Federation has taken no steps whatsoever to remedy Gridin’s violated rights. Only a small group of individuals in the country is even aware of the views of the Human Rights Committee in Gridin’s case, as the authorities and mass media alike are withholding the data. Meanwhile, the judicial corps is lead to believe that decisions of an international body whose jurisdiction has been recognized by the state are not at all binding for execution, and accordingly equally non-binding are other international acts, standards, etc. 33 In the Lantsov v. Russian Federation case (year 2002) the Committee found that the right to life had been violated, and required that the Russian Federation pay out fair compensation; the Russian Federation failed to fulfill their obligation voluntarily, and the applicants were denied compensation in a court of law. Therefore, the Russian Federation fails to comply with its obligations assumed under ICCPR and the Optional Protocol thereto. ARTICLE 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. The national law is based on the prohibition of gender discrimination. In accordance with Article 19 of the RF Constitution, “The State guarantees the equality of rights and liberties regardless of sex” (Paragraph 2) and “Man and woman have equal rights and liberties and equal opportunities for their pursuit” (Paragraph 3). Besides, Paragraph 4, Article 15 of the RF Constitution provides that “If an international treaty of the Russian Federation stipulates rules other than those stipulated by domestic law, the rules of the international treaty apply” (including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by the USSR in 1980). The RF Labor Code (Article 3), the Family Code (Paragraph 3, Article 1), the Criminal Code (Article 4) and other norms contain provisions prohibiting gender discrimination. As was noted in the Fifth Periodical Report of the Russian Federation on the observance of CEDAW, since 1997 the State Duma and the Government of the Russian Federation have adopted norms6 aimed at intensifying the authorities’ actions in improving the status of women. However, the provisions mentioned above mainly offer gender review, support to woman in executive positions and business women, better social security for mothers, and so on. These efforts are certainly important, yet insufficient. Article 3 of CEDAW obligates the participating states to ensure “the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.” Thus, anti-discrimination measures, including legal measures, are of principal importance. The research done in 2000 within the framework of country-wide, systemic human rights monitoring by regional Russian human rights organizations and the Moscow Helsinki Group showed that “despite the abundance of norms forbidding discrimination, there is no mechanism to realize them in practice, in particular no sanctions are provided for violation of the existing legislation.”7 There are practically no norms directly countering discrimination or aimed at establishing mechanisms to eradicate discriminating practices and re6 Concept of Legislative Activities on Ensuring Equal Rights and Equal Opportunities of Men of Women and The Concept of Improving the Status of Women in the Russian Federation respectively. 7 “Women’s Rights in the Russian Federation,” Human Rights in Russian Regions — 1999 (Moscow: Zatsepa, 2000). 34 store infringed rights. Besides, the relevant draft laws get no support from legislators. For instance, on April 26, 2002, the State Duma discussed an amendment to Federal Law “On Basic Guarantees of Election Rights and the Right to Take Part in a Referendum of Citizens of the Russian Federation,” which was to reject lists of candidates if they were comprised of more than 70% of persons of the same sex. The amendment fell short of the required number of votes, and was not included in the law. The monitoring of discriminating practices against women, carried out by the Moscow Helsinki Group jointly with regional women’s organizations in 20 regions of the Russian Federation in 2002, proved, in particular, that no region among those monitored had any anti-discrimination norms in place. The overwhelming majority of Russian lawmakers at all levels see the situation with women’s rights only from the perspective of the state’s implementation of its obligations to mothers and compliance with the principle of equality in legislation, overlooking any measures against existing discriminating practices, and providing equal opportunities for men and women to enjoy the rights stipulated by law. Russian courts now practice virtually no cases in connection with gender discrimination, although in experts’ opinion, and considering the number of complaints received by women’s and human rights organizations, the current discriminating practices pose a serious problem. Absence of a matrix, which would allow for adequate consideration of discrimination cases, does not permit the wronged person to prove the existence of discrimination. The courts, in their turn, “refuse to consider such actions, demanding that claims be rephrased (instead of ‘discrimination’ they insist on a reference to a concretely violated right).”8 From the standpoint of equal access to rights, the problem of the lack of women’s representation in the bodies of power is especially urgent. By law, women have equal rights with men to elect and be elected. However, women constitute only 7.6% of the State Duma membership and average 10% of regional legislative bodies. One of the obvious reasons behind this, is the negative stereotype, common among the population, which considers legislative activity a man’s line of work. At the same time, the authorities not only ignore any efforts to change the public opinion, but plot election campaign materials discrediting candidates on the grounds of their sex. Flyers proclaiming a candidate’s inadequacy and dependence were used against a woman running for the Saratov Regional Duma in 2002.9 Knowing the steadily declining proportion of women in the State Duma of the Russian Federation in 1993—1999,10 the need to facilitate gender balance becomes apparent. However, the activities of Russian authorities can mainly be reduced to the declaration of equality, with no mechanism in place to realize it. For instance, lawmakers considered Paragraph 2, Article 4 of Federal Law “On Basic Guarantees of Election Rights and the Right to 8 Ibid. Discrimination of Women in Contemporary Russia, Report based on the findings of a monitoring effort carried out in 2002—2003 the by MHG and women’s organizations in 20 Russian regions (Moscow: Moscow Helsinki Group, 2003). 10 The State Duma of the first convocation (1993—1995) had 14% of women; its second convocation (1995—1999) comprised 10% of the female deputies. 9 35 Participate in the Referendum of Citizens of the Russian Federation”11 a sufficient guarantee to ensure equal opportunities in realizing election rights, and dismissed the above-mentioned amendment to the law, designed to ensure a 30% representation of women on voting lists of political parties. ARTICLE 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (Paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. The provisions of Article 4 of ICCPR were especially important for Russia in 1994—2003, despite the fact that the state of emergency was only formally declared for the period of November 1992 — February 1995 in the area of the Osetin-Ingush conflict. In a number of areas in the North Osetia Republic and the Ingush Republic, a state of emergency was not officially proclaimed, although it was introduced de facto in the area of the armed conflict in the Chechen Republic in 1994—1996. The authorities of the Russian Federation did not use the state of emergency regime to protect — through the legal limitation of the constitutional rights of citizens — the people who suffered kidnapping in the areas around the Chechen Republic.12 Instead, the regionalization of the Russian Federation was accompanied with “creeping emergency,” with usurpation by the regional powers of authority to limit the rights of citizens,13 with the legalization of illegal armed forces,14 and with an increase in the number of enforcement structures (law enforcement, military, special services) and of the scope of their authority. A state of emergency was also not declared in the area of the second Chechen armed conflict that has been going on since 1999. The 11 “Citizens of the Russian Federation have the right to elect and to be elected, to take part in a referendum regardless of their sex…” 12 In 1991, before the launch of the armed conflict, federal power refused to make use of Federal Law “On the State of Emergency” to limit — within legal norms — the rights and freedoms of people living in the area around the Chechen Republic: see, for instance, “Report On the Situation in the Kursk Region of the Stavropol Territory” of April 8, 1999, and Open Letter of “Memorial” Human Rights Center to the President of the Russian Federation, B. Yeltsin, “On the Developments in the Northern Caucasus” of June 29, 1999. The government justified its course of actions with far-fetched reasons that did not reflect the real situation. 13 They mostly limited the freedom of movement and the right to choose the place of residence, the rights of forced migrants and ethnic minorities. 14 Ranging from the universal “restoration of Cossacks,” to ethnic voluntary forces in Dagestan in August-September, 1999. 36 situation here is persistently driven beyond the framework of justice, both national and international. A legal vacuum is artificially created,15 while the legal situation and law enforcement practices established in the Chechen Republic, in our opinion, determine to a great extent the situation with human rights on the entire territory of the Russian Federation. * * * A non-international armed conflict is taking place in the Chechen Republic, and, while assessing the legal situation there, it is necessary to rely not only on relevant ICCPR provisions, but also on those of international humanitarian law. The government of the Russian Federation strove to avoid international control in the area of the armed conflict by taking the situation out of the domain of humanitarian law. Therefore, it treated these developments as exceptional “internal affairs of the state,” thus avoiding the fulfillment of its international obligations. Officially, the conflict in Chechnya is called a “counter-terrorist operation,”16 but the main issue behind the conflict is the sovereignty of the Russian Federation. The Russian government consciously and persistently equates the fight against terrorism with the fight against separatism, with the elimination of armed gangs and the restoration of sovereignty, and refuses to undertake a political settlement of the crisis, thus violating its international obligations.17 The Russian government avoids the term “armed conflict,” since the absence of an armed conflict implies the absence of sides to that conflict, and in doing so eliminates the need for a political settlement: what settlement can there be with gangsters and terrorists? Yet, the armed conflict is going on de facto: for instance, take the territory it covers (15 000 km2), its length (four years), the military force involved (more than 80 000 persons), and the casualties (more than 3,000 killed and more than 10 000 wounded). This scale would certainly take it out of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.”18 This is the basis for the position of international (intergovernmental) organizations. Thus, the United Nations regards the developments in Chechnya “on the basis of the Geneva Conventions, in particular their common Article 3 and the Additional Protocol II, and other treaties concerning international humanitarian law… reminding that the Russian Federation is a participant of the Geneva Conventions and of the Second Additional Proto15 For more details see: A. Cherkasov, “Nature Does Not Admit Vacuum: Certain Problems of Assessing the Legal Situation and the Law Enforcement Practice in the Area of Armed Conflict in the Chechen Republic” on the website of the “Memorial” Human Rights Center: www.memo.ru. 16 Other euphemisms were used during the first Chechen campaign (1994—1996): “disarming illegal armed gangs” and “restoration of constitutional order.” 17 In particular, the obligations within the framework of the OSCE. 18 “Since these are not armed conflicts” — Article 1 of the Additional Protocol II to the Geneva Conventions of August 12, 1949 that concerns the protection of the victims of the conflicts of non-international nature (adopted June 8, 1977). Hereinafter referred to as Second Additional Protocol. 37 col thereto.”19 The Parliamentary Assembly of the Council of Europe (PACE) denounced “the violations of international humanitarian law” by the Chechen combatants,20 and placed the developments within the context of humanitarian law, recognizing the latter as a side of the conflict.21 Defining Chechen fighters as “terrorists”22 instead of “separatists” (a clearly more neutral and fair word) is used to take the representatives of the Chechen side out of the context of humanitarian law and make them objects of a commonplace police operation. Nominally, two systems of state power and administration function de facto on the territory of the Chechen Republic. The sovereignty of the Chechen Republic was unilaterally declared on November 1, 1991 by Decree of President J. Dudayev, although the international community has not recognized the republic. The Russian federal center tried to use force to settle the problem of Chechen separatism in 1994, and the armed conflict was unleashed. On August 31, 1996, both sides signed a peace settlement in the town of Khasavyurt, which envisaged the definition of the statute of Chechnya within five years through negotiations (the principle of the “postponed status” was thus adopted). On May 12, 1997, the Treaty “On the Peace and the Principles of Relations between the Russian Federation and the Chechen Republic of Ichkeria” was signed in the Kremlin by presidents B.Yeltsin and A. Maskhadov,23 where Articles 1, 2 stated the obligations of both sides to “renounce forever the use and the threat of force in the settlement of any problems” and “to build their relations in correspondence with the generally adopted principles and norms of international law.” Since 1997, the situation with human rights in the Chechen Republic has been persistently deteriorating. When extremist units invaded Dagestan in August 1999, the federal power could, and had to, use force to protect its citizens and drive back bandits and terrorists. Yet, the problem concerning the status of the Chechen Republic could not be settled by force: the treaties of 1996/1997 have not been denounced by the government of the Russian Federation or judged as inoperative by the Constitutional Court. The Russian Federation had no right to breach these treaties. Federal power did not accept the very possibility of a dialogue: the problem of the status of the Chechen Republic was considered automatically solved in favor of the Russian Federation. Substantial limitations of human rights introduced by the Russian government in Chechnya were neither accompanied by the declaration of a state of emergency, nor by the notification of corresponding UN structures (as ICCPR requires it), nor by the fulfillment of the procedure of “derogation” (as the European Convention for the Protection of Human Rights and Fundamental Freedoms requires), nor by the timely notification of relevant European agencies. Moreover, mass violations of basic rights which cannot be limited under any condition took place there. 19 The UN Commission on Human Rights Resolution E/CN, 4/2001/L24 of April 20, 2001. PACE Resolution of January 25, 2001. 21 Non-governmental armed groups can be regarded as “a side” to the conflict if they “remaining under responsible command, control a part of the territory which allows them to wage permanent and coordinated warfare and to apply the present Protocol” — Second Additional Protocol, Article 1. 22 Or “bandits,” as they were called during the first Chechen war. 23 Who was elected at general elections of January 27, 1997 conducted under international control. 20 38 * * * The government of the Russian Federation imposed limitations on human rights in the area of armed conflict in the Chechen Republic and strove to avoid parliamentary or any other control over the situation, persistently and intentionally taking the situation in the region out of the domain of law. As was mentioned above, Russian legislation allows for partial limitation of constitutional rights under the conditions of the state of emergency or war when it is properly declared. According to Article 88 of the RF Constitution, when a real threat to the security of people or constitutional order appears, and this threat cannot be eliminated without the use of the state of emergency, the President declares the state of emergency on the entire territory or separate regions of the country, immediately notifying the Federation Council (Upper House of the Parliament) and the State Duma (Lower House of the Parliament) about it. A presidential decree of the state of emergency must be endorsed by the Federation Council. In 1999, at the beginning of the armed conflict, Law #1253/1 “On the State of Emergency” of May 17, 1991 was in force, but was not used (as it happened during the first Chechen war of 1994—1996). Although to justify the start of the “counter-terrorist operation” the federal government cited the conditions stated in Article 4“a” of Law #1253/1 as the basis for the introduction of the state of emergency regime,24 Law #1253/1 was not used for pragmatic reasons. Firstly, it did not envisage the involvement of armed forces, only allowing for the use of the Ministry of Internal Affairs troops.25 Secondly, in 1999, the executive power was not sure that the decree of a state of emergency would be passed by the Federation Council. Thirdly, the government did not want parliamentary control over the military activities in the region. And fourthly, Articles 8, 17, 18 et. al. of Law #1253/1 had a clear definition of the legal regime of the state of emergency: it demanded exact definition of government bodies which are responsible for the fulfillment of corresponding measures; it required that the presidential decree declaring the state of emergency contain the list and the limits of emergency measures as well as an exhaustive list of temporary limitations of civil rights and freedoms. The law thus established human rights guarantees and mechanisms for their protection.26 That, of course, fettered federal enforcement structures and limited the potential abuse of power. Federal Constitutional Law “On the State of Emergency” adopted on May 30, 2001, extended the powers of enforcement structures considerably, and narrowed the potential for parliamentary and other control over the use of these powers. Yet, even this new law was not used to put the state of 24 “Attempts of forced alteration of constitutional order, public disturbances, accompanied with violence, inter-ethnic conflicts, the blockade of certain territories, the threat to the life and security of people, or normal activity of government bodies.” 25 The use of armed forces was allowed for in the extreme situation to conduct salvation work or to eliminate the consequences of force major situations, technogenic disasters, etc. 26 Article 27 stated that the state of emergency “cannot be the reason for the use of torture, cruel, inhuman and degrading treatment,” Articles 28 and 33 stated that the use of force and firearms is regulated by law and cannot be changed in the situation of the state of emergency and that unlawful use of force by the law enforcement offices and the military or the abuse of their powers including the violation of guarantees of civil rights will hold them responsible for it, etc. 39 emergency within a legal framework, since even these broadened margins still set limits to the arbitrariness of enforcement structures. Article 19 of Federal Law “On Defense” provides the potential for legal limitations of civil rights on a large territory and for long periods of time if the state of war is declared. In accordance with Article 87 of the RF Constitution, the state of war is introduced by the President and immediately communicated to the Federation Council and the State Duma. The presidential decree declaring the state of war is then to be endorsed by the Federation Council. Thus, in this case, parliamentary control is also envisaged. The fact that Russian executive power chose to resort to Federal Law “On Fighting Terrorism” and introduce the regime of a “counter-terrorist operation” was determined by the desire to involve armed forces in the armed conflict on the territory of the Chechen Republic without any parliamentary control.27 The only interpretation of the use of the Armed Forces in the Chechen Republic provided by Russian legislation was “to use arms not for their direct purpose,” on the basis of Article 7 of Federal Law #130, “On Fighting Terrorism,” dated July 25, 1998, which allows for the involvement of armed forces in a “counter-terrorist operation,” as well as on the basis of Article 10 of Federal Law “On Defense.” According to the latter, the RF President was to act in accordance with Paragraph 1.3 of Article 5, i. e., he was to issue a decree and have it endorsed by the Federal Council. This document could limit civil rights and, though it was to be made public,28 was not published for a long time.29 * * * Federal Law “On Fighting Terrorism” was criticized by the Council of Europe for not meeting European standards due to its potential to limit human rights. To note, long, large-scale army operations, massive and indiscriminate bombings and shellings, mass unsanctioned searches of houses, massive indiscriminate detentions, placing of detainees in illegal detention facilities, brutal treatment, torture and extrajudicial killings seem to run against the purposes of Federal Law “On Fighting Terrorism,”30 but they are possible due to its potential for arbitrary and extended interpretation. Federal Law “On Fighting Terrorism” has been applied for four years on end on 15 000 km2 of territory, although initially its purpose was to regulate local and brief uses of force where immediate reaction is needed and there is no time to get parliament to sanction the action. Essentially, this law originates from the “rule of a hot trail” in persecuting a criminal when he hides himself in a building and the police cannot enter it 27 Officials spoke of the “counter-terrorist operation” as far back as in August 1999. Although after September 11, 2001, Russian diplomacy and propaganda used this term internationally, “any coincidence here is to be regarded as accidental.” 28 “No regulatory legal act affecting the rights, liberties or duties of the human being and citizen may apply unless it has been published officially for general knowledge” — Paragraph 3, Article 15 of the RF Constitution. 29 This Decree, issued in 1999, was partially made public in 2002. 30 Also see the section on Article 6 of ICCPR in this report. 40 without a special warrant, thus violating habeas corpus. When the Federal Law “On Fighting Terrorism” was discussed, human rights activists feared that the enforcement bodies, with their extended powers and uncontrolled activities, would inevitably commit mass violations of human rights. Arbitrary and overly broad interpretation of the law further aggravated the situation. The law itself presupposes “the unity of place and time,” but substantial territorial expansion and long periods of application broke the link between the cause (actions of terrorists) and the consequence (actions of enforcement structures) making the cause irrelevant. Enforcement structures were given broad powers without any normative base to control and regulate the use of these powers. It is noteworthy that the Military Prosecutor’s Office admits this today. Applying Federal Law “On Fighting Terrorism” and the regime of the “counter-terrorist operation” to limit human rights in the area of armed conflict in the Chechen Republic, the government of the Russian Federation consciously creates a legal vacuum, which is filled with practices based on arbitrary interpretations of laws and frequent conscious violations thereof. This “legal experiment” resulted in mass violations of human rights. * * * In 2001—2002, the leadership of federal enforcement structures, both at the level of the United Task Force in the Northern Caucasus and on the federal level, issued a number of administrative documents geared to improve the human rights situation and the prevention of grave crimes against individuals in the area of the conflict. There are solid grounds to believe that the wide publicity and positive reaction of the international community, as opposed to the urge to eliminate such crimes, were the reasons behind these regulations. During the period when these documents were active, the situation with human rights did not improve: the number of mop-up operations, per se, declined, but the number of “disappeared persons” increased. On May 24, 2001, the Commander of the United Task Force, V. Moltenskoi, signed Order #145 “On the Measures on Improving the Activity of Local Bodies of Power, Population, Enforcement Structures of the Russian Federation and the Efficiency of Special Measures in Towns and Villages on the Identification and Detention of Heads and Members of Bandit Gangs on the Territory of the Chechen Republic.” Two months later, the RF Prosecutor General, V. Ustinov, issued Order #46 “On Enhancing Surveillance over the Protection of Civil Rights during the Checks of their Registration of Residence or Stay in the Chechen Republic.” On March 27, 2002, the Commander of the United Task Force issued order #80 “On Measures to Enhance the Activity of Local Bodies of Power, of Population, Enforcement Structures of the Russian Federation Countering Violations of Law and the Responsibility of Officials for the Violations of Law and Order During Special Operations and Address Checks in the Inhabited Localities of the Chechen Republic.” One cannot but uphold the provisions of Order #80: The analysis of the service and the combat activities testifies that lawless actions of the military of the federal forces against civil population still take place. Complaints of citizens and of the leaders of local bodies of power have repeatedly launched investigations and prosecutor actions in the course 41 of which the facts of marauding, insults, cruel behavior and abuse of power on the part of the federal military were disclosed. Lawless actions of the military directed against civil population have extremely negative influence on the process of stabilization in the Republic, annihilating all the efforts of the command to ensure security, law and order, and favorable conditions for the revival of social and economic life. Moreover, they promote anti-Russian attitude and provide the leaders of NVF [illegal armed forces] with additional opportunity to recruit new members for bandit gangs and their collaborators. When these facts are widely revealed, the leaders of bandit groups and their promoters efficiently use them to defame Russian leadership, the command of OGV [United Task Force], the military personnel involved in the counter-terrorist operation, they provide fuel for the informational war waged against Russia. * * * References to various clauses of Russian legislation cited in Paragraph 35 of the Fifth Periodical Report of the Russian Federation, evidently, do not pertain to the actual enforcement practice. In the situation when the state of emergency is proclaimed de facto, enforcement structures of the Russian Federation consciously, brutally and on a massive scale violate clauses of Paragraph 2, Article 4 of ICCPR. The scale of these violations does not make it possible to describe them in much detail within the given report, or even in this section. Breaches of Articles 6 (the right to life) and 7 (ban on torture) are discussed in the relevant section of this report. The activity of “squadrons of death”31 described there also violates the clauses of Article 16 of ICCPR since people who find themselves in secret unofficial detention facilities are deprived of the status of subjects of law. The corresponding section of the given report in some way discloses the violations of Article 8 of ICCPR (ban on slavery and human trafficking). Here, we should point out that kidnappings for ransom, which became one of the chief purposes of the launch of the “counter-terrorist operation” in the Chechen Republic, have been occurring on an even larger scale since then. The main difference is that today people are not kidnapped by bandits and terrorists; they are kidnapped by representatives of federal forces, and the relatives of victims can often not only free a detained person by paying a bribe, but can also buy back the body of a killed member of their family.32 * * * The meaning of the “counter-terrorist operation” that has been conducted in 1999—2003 on one thousandth of the Russian territory, in the Chechen Republic, goes far beyond its borders. The experience of persistent and intentional removal of the situation out of the framework of relevant legal norms was welcomed by hundreds of thousands of Russian enforcement officers who went to the area of the armed conflict. This makes one fear a 31 Special task forces of secret services that conduct illegal detentions “forced interrogation” (brutal torture) and extrajudicial killings which operate breaking Russian and international laws. 32 Any reference to Article 11 of ICCPR is hardly possible here since detainees have no obligations to extortionists. 42 gradual spread of “creeping emergency” and limitations of human rights onto the whole territory of Russia. ARTICLE 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Over the period of 1994—2003, the two Chechen campaigns — “the first” (1994—1996) and “the second” (began in 1999) - are undoubtedly the most significant and important events for Russia in light of the provisions of Article 6 of ICCPR.33 Paragraph 47 of the Fifth Periodical Report of the Russian Federation reads: In light of paragraphs 25, 28 and 30 of the comments of the Human Rights Committee it is necessary to note that one of the main principles of the conduct of the counter-terrorist activities in the Chechen Republic is the adequacy of application of means of destruction stipulated by the acute necessity to suppress criminal activities of participants of illegal armed formations in compliance with requirements of Federal Law “On Fighting Terrorism” and other legislative statutes of the Russian Federation.34 In our opinion, this statement does not reflect reality: neither “adequacy” nor “compliance with laws” apply in this case. This topic is also important because of the fact that during the time they spend in the Chechen Republic, personnel from the enforcement structures of the Russian Federation, including police, share the experience of uncontrolled, unpunished, and unrestricted by law violence, which inevitably is transferred to their service in the rest of the Russian territory. The overall number of civilians who have died in Chechnya is estimated at the following level: up to 50 000 in the “first war”35 and from 10 000 to 20 000 in the “second war.”36 Note that the official data rely on estimations made by human rights organizations since governmental structures did not make such calculations. 33 To correctly assess the data provided below one should be aware that the area of the Chechen Republic constitutes approximately one thousandth of the area of the Russian Federation (it measures 167 km from North to South and 108 km from East to West). The ratio of its population to that of the entire Russian Federation is 1/250 (approximately 600 000 people). 34 Note that the translation was made from the Russian original. 35 Data provided by the “Memorial” Human Rights Center and “Sergey Kovalyov Group.” 36 Data provided by the “Memorial” Human Rights Center and the Human Rights Watch. 43 In the course of both Chechen campaigns, the Russian Federation has been deliberately and consistently extracting the situation in the region out of the context of norms of the national and international laws, which would have restricted the application of force by the state and protected the rights of the population,37 first and foremost — the right to life. Not only was neither a state of emergency nor martial law introduced in the region, not only were the derogation procedures provided for by ICCPR and the European Convention for the Protection of Human Rights and Fundamental Freedoms not complied with: the Russian Federation took the events outside the context of international humanitarian law, particularly the provisions of the common for all Geneva Conventions Article 3 and Second Optional Protocol thereto, defiantly repudiating the reality or very existence of an armed conflict in Chechnya. Instead, during the “first war” one would speak of the “disarmament of bandit formations” (i. e., of a police operation somehow accompanied by a state of emergency introduced de facto), and during the “second war” of a “counter-terrorist operation:” Federal Law “On Fighting Terrorism” was used formally, and interpreted expansively and arbitrarily.38 This legal nihilism turned into a rule, and has become one of the causes of massive destruction of the civilian population. * * * Undoubtedly, the majority of civilians who died in the Chechen Republic fell victims to massive and indiscriminate bombardments and artillery shelling. More than half of the victims of the “first Chechen war” — between 25 000 to 29 000 people — died in Grozny in the course of the city onslaught undertaken by federal forces in December 1994 — January 1995.39 Observers then noted that for the first time since World War II a large European city had been turned into ruins. During the period of active military operations in the course of the “second war,” from autumn of 1999 through spring of 2000, the majority of casualties suffered by the civilian population (from 6 500 to 10 500 people) fell victim to massive and indiscriminate bombardments and shelling. The most well known episode is the shelling of Grozny’s center on September 21, 1999, with tactic missiles equipped with cluster pellet bombs — weapons of deliberately indiscriminate action designed to destruct live forces on large (several hectares) areas. Federal headquarters attempted to prevent the civilian population from leaving the combat zones. Thus, on September 25, 1999, by order of General Vladimir Shamanov, the exit of residents of the Chechen Republic into adjacent territories of the Russian Federation was forbidden.40 No “humanitarian corridors” were provided for the exit of people; the artillery and aviation forces bombed roads. In this respect, the most well known case is the low-flying attack at a column of refugees on the Rostov — Baku route 37 For details, please see the section on Article 4 of ICCPR in this report. See the section to Article 4 of ICCPR in this report. 39 For details see: Î. Orlov, À. Cherkasov, Russia — Chechnya: A Series of Mistakes and Crimes (Moscow: “Memorial” Society — “Zvenya,” 1998, pp. 144—192). 40 The fact that 300,000 people did manage to exit into the territory of Ingushetia must be credited to its President, R. Aushev, who ignored General Shamanov’s order. 38 44 conducted by Russian battleplanes in the vicinity of the Shaami-Yurt settlement, where dozens of people died.41 The refugees crowded onto the road following an announcement that a checkpoint on the border of Ingushetia that had been closed one week earlier would be reopened on that day. Note that those responsible for episodes of massive and indiscriminate application of force resulting in the death of civilians were never punished. * * * Deliberate attacks on the civilian population are unambiguously prohibited by Second Optional Protocol to Geneva Conventions.42 In the course of the “second war,”43 as federal troops continued to establish control over the territory of the Chechen Republic, several attacks against the civilian population were undertaken that resulted in multiple civilian deaths: in December of 1999 in the settlement of Alkhan-Yurt, in January of 2000 in the Staropromyslovsky district of the city of Grozny,44 and in February of 2000 in the settlement of Noviye Aldy. We are not in the position to assert whether these deliberate attacks against civilians were “excesses of the executor” or authorized by the superior commanders since investigation of both these episodes was never completed, and those responsible were not punished.45 Likewise, nothing is known about the results of the investigation of cases where civilians were taken hostages or used as a “live shield” during the “first war” — in the course of the onslaught of the settlement of Semashki in April of 1996, and that of the Grozny city hospital #9 on August 10—12, 1996.46 There is no doubt, however, that despite being episodic they were authorized by headquarters. In spite of the fact that active operations in the Chechen Republic were completed in spring of 2000, the civilian population continues to die: according to official data of the Ministry of Internal Affairs, 1 132 civilians died in 2002 alone. The majority of them were killed by representatives of federal enforcement structures.47 41 It is expected that this case will be heard in the European of Human Rights Court shortly. Article 13(2). 43 For details see Russia — Chechnya: A Series of Mistakes and Crimes (Moscow: “Memorial” Society — “Zvenya,” 1998, pp. 192—204). 44 It is expected that this case will be heard in the European Court of Human Rights shortly. 45 This very circumstance is mentioned in the February 17, 2003. Report Rudolph Bindig (Legislation and Human Rights Committee of the Council of Europe, PACE Monitoring Mission) as justification for the establishment of the International Tribunal on Northern Caucasus. The Council of Europe Parliamentary Assembly has upheld this proposal. We are of the opinion that Rudolph Bindig’s Report provides a comprehensive commentary on the statements contained in Paragraphs 47—48 of the Fifth Periodical Report of the RF that have to do with the investigation of crimes committed with respect to the local population. 46 For details see Russia — Chechnya: A Series of Mistakes and Crimes (Moscow: “Memorial” Society — “Zvenya,” 1998, pp. 233—244); O. Orlov, A. Cherkasov, Behind Civilians’ Backs: Taking Hostages and Using the Civilian Population as a “Live Shield” by Russian Federal Troops in the Course of the Armed Conflict in Chechnya (Moscow: “Memorial” Human Rights Center, 1996). 47 According to the Violence Chronicles of the “Memorial” Human Rights Center, based on a far comprehensive monitoring, out of 559 civilians who died (436 men, 60 women, 31 under the age of 18, the age and gender of 32 bodies not identified) 372 local residents — two thirds — died because of the enforcement structures of the Russian Federation and those of the Chechen Republic. 42 45 * * * “Disappearances” of people apprehended by representatives of federal enforcement structures assumed a mass character during the “second Chechen war.” “Disappeared” are people who had been apprehended by troops in combat zones and taken to military unit premises. “Disappeared” are people who had been detained in the course of “cleanings” of residential areas. “Disappeared” are individuals for whom enforcement-men with masks and weapons come at night in armored troop-carriers. All official authorities deny their connection with such apprehensions. Sometimes relatives of those who disappeared find their bodies with signs of cruel torture and violent death. In many cases, the bodies are blown up to avoid identification. When it is possible to track the fate of those apprehended it typically turns out that they were taken to military premises, commandant’s offices, etc. There, they are interrogated, kept for a while, and then killed. These structures that operate outside the confines of law, conducting illegal detentions, “forceful interrogations,” and extrajudicial executions, are frequently referred to as “death squadrons.”48 This name must not be misleading: in this case one speaks not of the “excesses of the executor,” but of a comprehensive system. Due to obvious reasons, it is much more difficult to obtain evidence of the activities of “death squadrons” — this link remains a “black box,” the existence of which nevertheless can be considered established. Bodies of people who were detained in different places at different times are often found in the same burial site, which means that there is a certain system of detention facilities, and that a structure coordinates the “inquest” and determines the ultimate fate of detainees.49 According to official estimations, anywhere from 1 663 (according to data attained from the Russian prosecution offices)50 to 2 800 or more people (data obtained by the Chechen Republic Governmental Commission on Missing Persons) 51 have disappeared. * * * The two “Chechen wars” in Russia brought about several large-scale acts of terror accompanied by androlepsy — namely, in the city of Budyonnovsk (loacated in the Stavropol territory) on June 14, 1995, in the Dagestan Republic on January 9, 1996, and in Moscow at the Dubrovka theater center (also known as “Nord-Ost”) on October 23, 2002. Analyzing actions of the political leadership and enforcement structures of the Russian Federation, one can see a total reversal of values in the hierarchy, in which lives of civilians do not come first. Application of force and storm directives lie at the core of any response to terrorist acts. This re48 This is the definition that Paul Ossares, who was in charge of analogous activities of French enforcement structures during the colonial war, used in his book Algeria. Special Services. 1955—1957 to describe his own work. 49 See for example: A. Politkovskaya, “Special Justice Administered by FSB: the President Has Promised Amnesty. But for Whom?” Novaya Gazeta (April 7, 2003). 50 As of January 2003, out of 1 178 criminal cases initiated on facts of kidnapping only one has resulted in the initiation of criminal proceeding against an employee of federal enforcement structures — this is the best illustration to the thesis about the atmosphere of impunity reigning in the armed conflict zone in the Chechen Republic, that was so convincingly demonstrated in the aforementioned Rudolph Bindig’s Report. 51 Neither A. Kadyrov’s administration of the Chechen Republic, nor the Russian prosecution authorities are interested in overstating the number of missing persons. 46 sults in the rejection of negotiations as an effective means: negotiations only camouflage the preparations for a storm. One aspect of the counter-terrorist operation in Moscow on October 23— 26, 2002, can serve as an example. During the storm of the Dubrovka theater center in Moscow on October 26, 2002, a chemical substance of principally indiscriminate action was used — the gaseous substance, analogous to that employed for surgery anesthesia,52 is primarily utilized to help liberate hostages in detention facilities.53 The gas immobilized the terrorists, preventing them from using any of the numerous explosion devices they possessed. The gas affected everyone who was in the auditorium of the theater center. However, the hostages turned out to be much more vulnerable than the terrorists, since for more than two days they had practically been without food, water, and motion. Due to uneven air stirring in the large auditorium, zones of high concentration of gas formed, and the gas affected the hostages in these zones much more severely. When the special task troops broke into the Dubrovka theater center auditorium and terminated the terrorists, it turns that the headquarters which were prepared to terminate them at any cost, including the death of all hostages,54 failed to provide for the timely evacuation of the latter once the building was seized. Evacuation of the hostages began only 110 minutes later, and it was not until 170 minutes after the gas had taken effect that their delivery to hospitals began. A total of 129 hostages died, approximately three fourths of them dying before they were taken out of the building, and one fourth during their transport to the hospital. Note that according to Federal Law “On Fighting Terrorism,” participants of a counter-terrorist operation are not to be held liable for any harm caused to civilian individuals. One may state that in all three cases the goal of the governmental forces was not to rescue the hostages, but to terminate the terrorists. If, however, one should regard the “second Chechen war” as a “counter-terrorist operation,” as suggested by Russian authorities, then the opinions expressed in the first part of this section of the report chapter would have been significantly more restrictive. * * * Note that the protection of civilians’ lives has not been the primary goal of the state, just as it was not an objective of the state to protect the lives of the military and enforcement personnel. Thus, during the “first Chechen war” Russian troops lost approximately 6 000 persons in casualties. The majority of them were killed during operations in Grozny in the winter of 52 Note that anesthetic is administered to a patient in an individual doze and under the control of an anesthesiologist. 53 Note that in this case the size of the cell is limited, and a certain concentration of gas can be administered avoiding significant heterogeneity. Then, special task troops break in and liberate hostages within a matter of several minutes, after which immediate provision of medical assistance becomes possible. 54 In television reports, one could see a column of heavy construction machinery ready to clear away ruins and debris should the theater center building be blown up. 47 1994—1995, and August of 1996.55 Those who were responsible for the mass killing of military personnel were never held liable — in fact, they were never even looked for. General A. Kvashnin, who planned the storm of Grozny in the winter of 1994—1995 and commanded the federal troops, later assumed the position of Chief of General Headquarters of the Russian Federation. General K. Pulikovsky, who commanded a group that was practically entirely annihilated during that storm, also headed the United Task Force in the Northern Caucasus in 2000, and became a Plenipotentiary Representative for the RF President in the Far East. It is not surprising, therefore, that the lives of military personnel are not even protected during socalled “peace time” — in the year 2002 alone, according to official data, 535 servicemen of the Russian Army died outside of armed conflicts. * * * Problems with the observance of Article 6 of ICCPR by the Russian Federation are not limited to the issues of the Chechen conflict and those of countering terrorism. The analysis of cases received by the Center for Assistance to International Protection demonstrates that the Russian Federation is derelict in its positive obligations regarding the securing the right to life. A number of murders which were committed did not see proper investigation or the punishment of the perpetrators, due to administrative dereliction. For example, in July of 1993, D. Machavariani was discovered in Moscow with signs of a violent death. No criminal proceedings were initiated, and no investigation was conducted. The numerous petitions submitted to law enforcement authorities for several years in a row by his widow proved fruitless. The Center for Assistance to International Protection had corresponded with police and prosecution bodies for several years. Given that these efforts proved fruitless as well, a complaint on the violation of Article 6 of ICCPR was forwarded on behalf of Nonna Machavariani to the UN Human Rights Committee in 2001. * * * It is necessary to note56 that although the death penalty has not been officially abolished in the Russian Federation, there is in fact a moratorium on its administration. Under these circumstances, however, the moratorium is compensated not only by the widespread practice of extrajudicial executions in the zones of armed conflict in the Chechen Republic, but also by the severe conditions of confinement of those who have been sentenced to life in prison. Consequently, two of the organizers of the terrorist act in Dagestan in January of 1996 — Salman Raduyev and Turpal Atgireyev — died in prison in less than a year after their sentence had been delivered. In fact, numerous cases of deaths in penitentiary facilities are observed in the Russian Federation. In a number of cases this comes as a result of the unbearable conditions of confinement and the deprivation of necessary medical assistance to the inmates. Cases are known in which the circumstances surrounding the deaths of inmates remain uncertain, while their 55 For more details on the attitude of the state towards military personnel see: Î. Trusevich, À. Cherkasov, Unknown Soldier of the Caucasus War (Moscow: Zvenya, 1997). 56 Omitting details of Paragraphs 40—44 of the Fifth Periodical Report of the Russian Federation. 48 bodies bore signs of physical injury. In such cases, the inquest function is carried out by the administration of the penitentiary facility, which thus renders investigation into the causes of death ineffective. Therefore, the case of V. Lantsov, who died in prison and whose relatives insisted on conducting an appropriate investigation, was ignored by authorities, who thereby failed to fulfill the obligations imposed upon them by Article 6 of ICCPR. (As was mentioned in the section on Article 2 of ICCPR in this report, the case of Lantsov was considered by the UN Human Rights Committee in 2002, and Russia was found in violation of Article 6. The Views of the Committee, however, have not been taken into account by the Russian Federation as of yet, and Lantsov’s family has not yet received the due compensation). * * * To sum up, one may state that in 1994—2003 the protection of the right to life provided for under Article 6 of ICCPR has proved to be far from a priority for the Russian Federation. ARTICLE 757 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Subjection to torture, as well as cruel and degrading treatment continues to remain one of the most serious problems in the Russian Federation as far as ensuring human rights is concerned.58 Evidence and complaints received by human rights organizations indicate that torture and cruel and degrading treatment are often used by those bodies combating delinquency and protecting public order (subdivisions of the Ministry of Internal Affairs). One of the reasons why this practice has become so widespread is the insufficient professional training of law enforcement agency employees. Lacking the skills that allow for the successful realization of their professional tasks without the application of excessive violence, such personnel try to enforce the law and fight delinquency using torture and other types of treatment and punishment forbidden by Article 7 of ICCPR. This situation is exacerbated by the fact that the programs of study used to train law enforcement agency employees do not pay enough attention to personal immunity and the prohibition of torture and cruel and degrading treatment. Law enforcement staff often use violence against individuals who have committed insignificant violations of public order, or have not committed any violations at all. On November 29, 2002, two residents of the Smolki settlement, N. Shevelev and A. Serov, were returning to their homes from a pub. As indicated 57 This section was prepared using the information provided by Krasnoyarsk Territorial Fund “Legal Defense,” Moscow Helsinki Group, Nizhny Novgorod Committee against Torture, Kazan Human Rights Center, Office of the Public Fund “International Standard” in Tuimazy, and the Center for Assistance to International Protection. 58 Detailed information about manifestations of torture and other prohibited forms of treatment is contained in the Alternative Report presented by a group of Russian nongovernmental organizations to the UN Committee against Torture in May of 2002. 49 by witnesses, Shevelev and Serov did not commit any unlawful actions. Still, they were detained by the police, handcuffed, thrown into a police vehicle, and taken to a sobering-up station. On the way, the police officers beat up Serov and Shevelev while they were handcuffed and could not offer any resistance. Relatives and representatives of the settlement administration retrieved Serov and Shevelev from the sobering-up station and immediately took them to a physician who identified that Serov and Shevelev had been physically injured.59 Torture, cruel and degrading treatment are often used as means of crime disclosure. Most frequently, they are used prior to the beginning of criminal proceedings within the framework of the so-called operative-investigative activity (ORD). ORD is basically the collection of information about the criminal and the crime. Such information may not serve as evidence, but it helps law enforcement agencies identify and obtain evidence. In the course of the so-called “operative conversations” conducted by law enforcement agencies, the latter can subject an individual to torture in order to obtain information about accomplices, possible traces of the crime, and the location of property appropriated in an unlawful fashion, etc. Having received the necessary information, law enforcement officers then conduct investigative actions (searches, interrogations, etc.) in compliance with all the requirements of procedural law, and eventually obtain proof for legal proceedings. On February 26, 2003, officers of the “Derbyshki” police station in the city of Kazan illegally detained D. Petrov and À. Nuriyev (both underage). The police officers kept Petrov and Nuriyev at the station for almost two days, during which they were subjected to torture and beatings as the police tried to make them provide information about a car stereo theft.60 Head of the Security Department of the Ministry of Internal Affairs of the Tatarstan Republic, S. Chepushtanov, informed a correspondent of the “Vechernyaya Kazan” newspaper that his department had received complaints about similar cases from 12 individuals during the first three months of 2003 only.61 It is worth noting that operative-investigative activity is conducted secretively. Methods of such activity are never disclosed, and are practically outside court control. In addition, the criminal procedure law does not apply to operative-investigative activity. This results in the fact that an individual, with respect to whom such activity is undertaken, has no right to be represented by an attorney, nor does he/she have any guarantees provided for by the RF Criminal Procedure Code62 regarding suspects and defendants. At the same time, in practice, torture aimed at forcing testimony may also be exercised within the area of criminal procedure regulated by the RF Criminal Procedure Code. The primary goal of torture is to obtain a testimony from suspects and witnesses, which is later used as evidence in a criminal court procedure. According to Paragraph 1, Article 75 of the recently adopted Criminal Procedure Code, the testimony may not be considered acceptable if it was obtained from a suspect or defendant in the absence of an attorney in the course of preliminary investigation or 59 60 61 62 Materials of the Nizhny Novgorod Committee against Torture. Results of investigation conducted by Kazan Human Rights Center. Materials of the Kazan Human Rights Center. Criminal Procedure Code of the Russian Federation took effect on July 1, 2002. 50 interrogation, and was not confirmed in a court of law. However, this legal norm is clearly insufficient to prevent torture within the framework a criminal procedure. Firstly, there are cases when torture has been used against witnesses who do not have the right to be represented by an attorney, and to whom the guarantee of Paragraph 1, Article 75 of the RF Criminal Procedure Code does not apply. For example, in the case charging the Azieyvs and Bakalayev with terrorism and a number of other crimes, the testimony provided by witness Bangashev was used as core evidence. Bangashev insisted that the testimony obtained in the course of investigation had been provided by him under torture. Bangashev petitioned to the RF Supreme Court that had reviewed the appeal filed by the Azieyvs against the decision of the Stavropol territorial court, but the Supreme Court did not take Bangashev’s petition into consideration.63 Secondly, as a rule, torture aimed at forcing testimony and the actual provision of testimony do not occur at the same time. Usually, police officers torture their victims first, explaining to them what they must say at the interrogation, and then they take them to an investigator’s or examiner’s office where an attorney can be present. If the victim fails to provide the required testimony at the interrogation, as a rule, he is taken out of the investigator’s office and the torture continues. Subjection to torture with the aim of extorting information is accounted for by the fact that a testimony obtained under torture continues to be accepted by courts, even if during court proceedings the defendant or witness declares that his testimony was obtained under torture. For example, in early 2003, the Nizhnii Novgorod regional court found N. Zakharov guilty of a crime, based on his own confession and testimony of three witnesses. In court, all three witnesses declared they had been tortured by investigative officials and forced to testify against Zakharov who had been accused of murder. The court relied on the testimony of witnesses to find Zakharov guilty, having noted that the declarations of the witnesses made in court were false, and that they claimed to have provided their testimony under torture “to alleviate Zakharov’s situation.” At the same time, none of the witnesses had been earlier acquainted with Zakharov, and consequently could not be interested in relieving him of criminal liability.64 Such cases are numerous. Although courts have the right to suspend proceedings and demand that a testimony be examined in order to determine whether it has been obtained under torture, since the Russian justice system retains its punitive traditions, it happens very rarely. In the majority of cases registered by human rights organizations, courts never examine defendants’ and witnesses’ statements to determine whether or not they had been obtained under torture, and regard such declarations as attempts to escape responsibility for the crime. 63 64 Materials of the Nizhny Novgorod Committee against Torture. Results of investigation conducted by the Nizhny Novgorod Committee against Torture. 51 In our opinion, the practice of using torture as a means of disclosing crimes will continue as long as the procedural law is not amended to make it a requirement to examine statements indicating forced testimony under torture. Today, courts are free to exercise their own judgement as to the acceptability of a testimony.65 At the same time, this guarantee is clearly not sufficient since the court is not competent and has no resources to examine the veracity of a torture claim. Such examination is delegated to prosecution authorities, which consequently must conduct it speedily, effectively, and impartially. Unfortunately, competent bodies of power do not undertake proper measures in investigating torture complaints and penalizing perpetrators. It was not until March 19, 2003, that the RF State Duma passed in its first reading a draft law to amend the RF Criminal Procedure Code, rendering torture a criminal offence (Article 1171). Should the amendment be adopted and enforced, the prevention of torture would become significantly more effective. However, in addition to banning torture and rendering it a punishable criminal offence, the state must commit itself to conducting effective investigation of each case of torture, and punishing the offenders. Otherwise, even the improved criminal legislation will not lead to the eradication of torture. According to Russian legislation, it is the bodies of prosecution that are authorized to conduct investigation of complaints of torture. However, as a rule, they investigate such complaints in a very slow and ineffective manner. It is important to note that the investigation itself is conducted by prosecution authorities at the district level, which are not motivated to investigate complaints about torture and cruel treatment. The reason for their reluctance is that torture and cruel and degrading treatment are used by police officers. According to the rules of jurisdiction, the examination and investigation of torture complaints are conducted by prosecution officials of the same district in which the very police officers with respect to whom the complaint is filed work. In this respect, it should be emphasized that the district level prosecution authorities cooperate very closely with the district level police when investigating general criminal offences. Close working and sometimes even personal ties evolve between prosecution and police officials operating within the confines of the same district. As a result, prosecution officials become incapable of conducting objective investigation of complaints about torture and cruel and degrading treatment, since they initially side with the police officials, not the victims. In addition, prosecution authorities of the district level do not utilize the technical and human resources necessary to conduct the investigative activities required to disclose offences, including such types of abuse as torture and cruel and degrading treatment by officials. Therefore, prosecution authorities delegate the conduction of such activities to district police authorities. Thus, the collection of evidence in regards to a police official accused of using torture is conducted by his fellow officers, and sometimes even by himself. An indicative example is the story of E. Verin, a witness in the A. Mikheyev case. During interrogation at a police station, Mikheyev was tortured with electricity. Affected by torture, Mikheyev jumped out of the 65 Articles 17, 88 of the RF Criminal Procedure Code. 52 window of the office in which he was questioned, and in which he had confessed, in writing, to committing a kidnapping, a rape, and a murder, none of which had taken place in reality. In the course of the investigation of circumstances surrounding this incident, Mikheyev and his representative petitioned to investigation authorities, requesting that Verin, who had seen Mikheyev in the hospital and could testify as to whether there had been any signs of torture by electricity on Mikheyev’s body, be interrogated. At first, the investigator agreed to an interrogation, but later advised that “interrogation of Verin was impossible due to Verin’s absence at the place of residence.” It turned out later that the prosecution authority delegated the interrogation of Verin to the very police department in which Mikheyev had been subjected to torture. Implementation of this commission was vested with operative officer E. Oreshkin, who, based on Mikheyev’s statement, was one of the individuals who had tortured him by electrocution. There is little surprise, therefore, that Oreshkin, who was evidently not interested in collecting evidence against himself, failed to locate Verin at his place of residence, Verin being confined to a wheelchair and unable to leave his apartment without assistance.66 Thus, the district level prosecution authorities cannot be considered sufficiently independent to investigate complaints of torture and cruel and degrading treatment. This situation can be corrected if investigation of such complaints is delegated to prosecution authorities at the federal subject level (regional level), as well as security structures of the Ministry of Internal Affairs and Federal Security Service (FSB). Such proposals were made in 2001, as is indicated in Paragraph 51 of the Fifth Periodical Report of the Russian Federation. So far, no steps in that direction have been taken. Currently, the regional level prosecution authorities, as a rule, do not conduct investigations of complaints of torture and cruel and degrading treatment themselves, but do control the district level prosecution authorities. Practice shows that in the overwhelming majority of cases the prosecution authorities of the subjects of the Russian Federation cancel illegal and unjustified resolutions from the district level prosecution authorities, in which the latter refuse to institute or close criminal proceedings based on torture complaints. However, following that, the cases are again forwarded to the same district prosecution authorities which, neglecting the orders of prosecution authorities of a higher level, do not properly collect evidence, incorrectly assess existing evidence, and violate procedural terms once more. Then again, the regional level prosecution authority cancels another decision of the district level prosecution authority to refuse institution or closure of criminal proceedings as illegal and unjustified, and the case is again forwarded to the district level prosecution authority. This going round in circles can repeat itself up to ten times, causing investigations of complaints of toruture to last for years. Despite the fact that regional level prosecution authorities admit that investigators of the district level prosecution authorities systematically make illegal decisions, no effective organizational measures (disciplinary penalties, retraining of personnel, etc.) are taken to suppress such practices. A separate problem is the independence of authorities responsible for the investigation of cases of torture and cruel treatment in the army. Activi66 Investigation materials of the Nizhny Novgorod Committee against Torture. 53 ties67 referred to in the official report and undertaken by military prosecutors have played a positive, but not decisive role, since the system of inquest that currently exists in military units does not ensure the independent and impartial investigation of complaints regarding torture and cruel and degrading treatment, and does not provide conditions for holding the perpetrators accountable. According to Article 40 of the RF Criminal Procedure Code, commanders of military units are responsible for conducting inquest activities in connection with all offences committed by their subordinate personnel. Commanders have the right to undertake all necessary operative-investigative and other measures accounted for by law in order to disclose a crime and identify perpetrators. At the same time, commanders of military units are not interested in disclosing crimes, since the disclosure of a crime committed on military premises is sufficient grounds for the imposition of disciplinary penalties against the commanders. On the other hand, commanders of military units themselves can be involved in torture and cruel and degrading treatment. Thus, the mandate accounted for by the law allows commanders to effectively conceal offences committed in their units. It is impossible to solve this problem without modifying the existing legislation, and without depriving unit commanders of the right to initiate criminal proceedings, collect evidence, and conduct operative activities. In addition, regardless of the context in which torture and cruel and degrading treatment are used (in the army, during investigation and inquest procedures at law enforcement agencies, etc.), there is a problem in the protection from persecution of those individuals that file complaints about such type of actions, as well as witnesses that testify against officials. The new Criminal Procedure Code does not account for adequate measures of protection for those who suffered criminal offences, as well as witnesses and their family members. As a result, individuals who have petitioned to prosecution authorities claiming they were tortured, as well as witnesses and their relatives, are subjected to pressure, which in a number of cases amounts to the application of violence. Prisoners who complain about torture and cruel treatment exercised by the administration of penitentiary facilities find themselves in an especially hard situation, since during the period of the examination and investigation of the allegations they are not transferred to a location where they will not be subjected to pressure and persecution from the officials whose actions they actually complained about. Given that there is no protection system for complainants and witnesses in cases of torture, the investigation of such violations is not effective, since they are frequently forced to give up their statements and testimony under the threat of persecution. In addition, the threat of persecution compels many victims of torture and cruel and degrading treatment to refrain from filing complaints with authorities, which only adds to the impunity of torture. ARTICLE 8 The implementation of Article 8 of ICCPR is dealt with in the Fifth Periodical Report of the Russian Federation on pages 55 through 58. This sec67 Paragraphs 52, 53, 54 of the Fifth Periodical Report of the Russian Federation. 54 tion reports the measures taken by the government to fight against the sexual exploitation and trade of women and children, and against the human trafficking implicated therein. Indeed, in 2000—2002, the government of the Russian Federation started to pay attention to the issue of trafficking with respect to women and children. The fact that this issue has been recognized as a problem should certainly be regarded as progress compared to the current attitude towards other forms of slavery and human trafficking. * * * The problems of slavery, human trafficking and forced labor were very acute in the Russian Federation during the period of 1994—2003. The overall situation in this area can be characterized as follows. The exploitation of forced labor, the kind of which was in place in the Soviet era, is absent in modern Russia. However, there have been numerous instances of criminal use of forced labor, abduction for the purpose of receiving ransom, and of the use of “home slaves.” The latter form of exploitation has been widely used in the RF republics of the North Caucasus (especially in the Chechen Republic). The most vulnerable group of the population, with regard to slavery-related practices, are conscripts, who are being forced by their commanding officers to work for them, sent to work for commercial organizations, or even sold into slavery. The government has not taken appropriate measures to put an end to this situation. * * * 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. Since 1997, there have been numerous widely publicized cases of abduction for ransom in the Chechen Republic and the adjacent republics of the North Caucasus.68 In 1999, they were referred to as one of the main justifications for starting the “antiterrorist operation,” a military campaign that was aimed to eliminate separatism in the Chechen Republic. Once the territory of Chechnya was taken under control by the enforcement structures of the Russian Federation, the business of abducting people and returning them for ransom, on a scale comparable with the previous situation, was taken over by individual officers of the RF enforcement structures. Finally, there is an ongoing influx of reports on the forced exploitation of illegal migrant workers (primarily in construction), and on the exploitation of women, children, disabled persons, individuals without permanent residential registration, and homeless people as well. Several instances of human trafficking have also been reported in this context. However, both the general public and the authorities consider these problems to be of secondary importance, and unrelated to each other. There is no generally acceptable list of these issues, and no comprehensive research 68 The fact that the abducted people were widely used as “home slaves” is not well known outside of Russia. However, very few people in Russia know that the majority of those abducted for ransom are ethnic Chechens or residents of the Chechen Republic. 55 has been done so far in this area69. Many offences of this kind have simply been ignored by the law enforcement authorities (despite repeated appeals by criminologists to include them in general crime statistics), while many such offences have not even been defined in criminal law. As of now, Russian authorities have taken only the first steps in this direction. In 2002, a bill was introduced in the State Duma to amend the RF Criminal Code with an article entitled “Employment of Forced Labor,” which would provide up to eight years imprisonment for this offence. According to media reports, between 1997 and 1999, the number of abducted people in the regions of the North Caucasus was running in the thousands. The federal enforcement structures responsible for freeing the hostages are apparently not up to this task.70 It was only in autumn of 1998 that the task of freeing hostages was taken up in earnest by the Department Against Organized Crime (RUBOP).71 After this, Ministry of Internal Affairs unit started tackling the problem of hostage-taking, it turned out that in many cases they were more likely to get involved in the trade of human beings themselves than they were to prevent such criminal activities. There have been reports that some of the officers of the North Caucasus RUBOP asked the relatives of the abducted people to collect the allegedly required ransom money, only to appropriate this money later. In 1999, it became known in the Dagestan Republic that the bulk of the money allocated for the purpose of freeing hostages in Chechnya was misappropriated. These funds were divided among themselves by the Dagestan enforcement structure officials acting as intermediaries.72 Right after the beginning of the 1999 “counter-terrorist operation,” detentions on the territory of Chechnya acquired a large-scale and indiscriminate character. This had two inevitable consequences: torture and corruption. Evidence obtained by torture and/or other cruel treatment during the interrogation of detainees often became the only available proof of their guilt, while the absence of any other evidence allowed the officers of the federal enforcement structures to make arbitrary decisions, ranging from criminal prosecution to the complete release of detainees. Release for ransom became an established practice almost immediately since the winter of 2000, and has not been eliminated in the subsequent three years. The intermediaries between the federal enforcement structures and relatives of the detained people are often also the same individuals who were involved as such in the trade of human beings in 1997—1999. The criminalization of the enforcement structures’ activities in the North Caucasus did not come as a surprise — it can be regarded as a natural consequence of the deliberate policy aimed at pushing the situation outside 69 This issue has been reviewed in the Section “Freedom of Slavery, Ban on Forced and Compulsory Labor” in Human Rights in Russian Regions — 2001” (Moscow: Moscow Helsinki Group, 2002, pp. 36—50). 70 In the two years (autumn 1996 — autumn 1998) 140 hostages have been released primarily due to the activities of major V. Izmaylov; after his discharge from the army he continued to be engaged in the release of hostages as a journalist of the Novaya Gazeta. 71 In a brief period of time, they managed to free over 100 hostages, due, primarily, to the information received from Izmaylov. 72 This information was received from the Polish Embassy officials in charge of locating two Polish women-scientists abducted in Dagestan. 56 of the legal context,73 as vividly displayed by the evolution of the situation in the North Caucasus.74 Until 1994, such a criminal offence as abduction for ransom was not among the most frequent offences in the Chechen Republic. In the course of the “first Chechen war” the trend was reversed, primarily as a result of attempts by the federal side of the conflict to take the situation out of the context of national and international law.75 The qualification of the events in the Chechen Republic as a process of “disarming illegally armed groups” rather than as an armed conflict (internal or even international), and the refusal to view the conflict within the context of the Geneva Conventions and Additional Protocols thereto, allowed the RF to disregard the Chechen side as a legitimate partner for possible dialogue. However, such an approach made it impossible to require the opposite side to respect the POW status of the captured servicemen and civil personnel. The federal side refrained from even using the term POW in its negotiations with the Chechen side, referring to them instead as “hostages” to be bought out or exchanged for captured “outlaws.” Thus, the federal side handed over to the opposite side a list of Chechens apprehended on various charges unrelated to the armed conflict as of July 5, 1996, which was put together from the database of the Main Information Center of the RF Ministry of Internal Affairs. The reaction to this move was quite predictable: “They try to exchange POWs for criminals.” However, the list was made public, and that triggered a succession of hostage-taking with demands to exchange them for detained criminals. Use of hostages as a “human shield” during the armed conflict76 (see more on this issue in the corresponding section of this report) constitutes a gross violation of Article 8 of ICCPR. Similar to many other issues (i. e., torture, etc), the situation of the trade of people in the Chechen Republic should be viewed as an extreme manifestation of the trends and practices existing all over the country. The government policies implemented in the course of several years created conditions that actually promoted the trade in people and criminal employment of slave and forced labor against a background of general impairment in the situation in the country. The introduction of stricter passport control and the regulation of migration greatly impairs the life of illegal migrant workers, whose passports are confiscated, as a rule, by their so-called “employers.”77 Numerous releases of “house slaves” in Chechnya and Ingushetia are primarily owed to the operation of federal enforcement structures in that re73 For more detail, see the section on Article 4 of ICCPR in this report. For more detail on the events of 1994—1999, see the report by A. Cherkasov, Hostage Taking in the Caucasus in the Late 90s: Historical Roots at www.memo.ru. 75 For more detail, see the section on Article 4 of ICCPR in this report. 76 Also, see the section on Article 6 of ICCPR in this report. Also, O.Orlov, A. Cherkasov, Russia-Chechnya: the Chain of Mistakes and Crimes, (Moscow: Memorial, Zvenya, 1998, pp. 233— 244); and O. Orlov, A. Ñherkasov, Hiding Behind Innocent Civilians: Hostage Taking and Use of Civilian Population as a “Human Shield” by federal forces of Russia in the Course of the Military Conflict in Chechnya (Moscow: Memorial, 1996). 77 See the sections on Articles 2 and 12 of ICCPR in this report. 74 57 gion. Forced labor is being widely employed in several adjacent regions, but since there is no ongoing “counter-terrorist operation” nothing is being done about it. There are no programs in place aimed at the social rehabilitation and adaptation of the former “slaves” who very often choose to return to their former masters. As a result, the overall environment has a very negative impact on the problem of banning slavery and the trade in people, an issue that requires enhanced attention. However, the overall situation is not hopeless. In the international arena, the Russian Federation has been forced to at least recognize the existence of the problem, which has been reflected on pages 55—58 of the Fifth Periodical Report of the Russian Federation. * * * 3. (a) No one shall be required to perform forced or compulsory labour. (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court. (c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include. (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention. (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors. (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community. (iv) Any work or service which forms part of normal civil obligations. The Fifth Periodical Report of the Russian Federation does not deal specifically with the issue of compulsion to labor. However, the employment of conscripts as compulsory laborers outside of their service duty still remains a common practice. Committees of Soldiers’ Mothers, other human rights organizations, and the mass media have documented numerous cases of this kind. Nevertheless, the situation remains unchanged and the exploitation of this kind continues, ranging in extreme cases to the actual sale of conscripts into servitude to private individuals. The Ministry of Defense and other enforcement structures to which conscripts are assigned to serve, as well as the Chief Military Prosecutor’s Office, do not take any practical steps to resolve the issue. An anonymous survey conducted in 2000 in the city of Samara among 23 conscripts by a human rights foundation “Samara’s Choice — 21st Century” revealed that two thirds of the surveyed servicemen had been involved in work that did not directly relate to their duties, or they were familiar with such cases. The most common form of exploitation is the assignment of soldiers by their commanding officers to construction or renovation projects involving the homes or apartments belonging to the officers or their relatives, as well as using soldiers as helping hands on farms. 58 Privates Pavlov and Ovsiyenko from military unit #29483 in Vladikavkaz (in the Republic of North Osetia—Alania) were taken by their warrant officer Djusovev to the village of Sunj in the Prigorodny district, where they worked on the construction of a house belonging to Djusovev’s brother. On May 13, 2002, a rainstorm accompanied by gusty wind caused a rupture of the power supply cable. Trying to mend the rupture, privates Pavlov and Ovsiyenko were injured by an electrical discharge. Pavlov died on the way to hospital. Ovsiyenko, who was injured during the fall, is alive.78 In December of 2001, another anonymous survey was conducted among 23 soldiers. Eight of them claimed that they had participated in unauthorized work. Nine servicemen stated that they are aware of cases where soldiers would be employed in projects outside of their duty responsibilities (construction, driving a vehicle). The military prosecutor’s office normally pays attention only to the most outrageous cases, involving death or severe injuries of servicemen. On July 2, 2002, eight soldiers from an air defense rocket artillery battalion stationed at the village of Funkovo (Moscow region) were sent by their battalion commander to dig a ditch at his country house. A landslide occurred and three enlisted men were buried under the earth. Two of them were taken to hospital with various injuries, and the third one, a 20-year old private D. Kiselev, died before the arrival of the emergency crew. The battalion commander was suspended from his duties by the order of the commander of the Moscow Airforce and Air Defense military district, while the prosecutor’s office opened a criminal investigation.79 Another widespread form of exploitation of enlisted personnel labor is the assignment of servicemen to work for private businesses. Sergei K. was recruited to the army from the Kurgan region in the spring of 2002. Six months later he went AWOL from his unit, which stationed in the Stavropol region. In his statement written to the Committee of Soldiers’ Mothers he claimed that for a period of two months he had to herd cows, and for the next four months, together with 20 other servicemen, he had to work as a construction worker for a private construction company building a road. All the wages earned by the servicemen were taken by the commander of the unit.80 Some of the regions are more outstanding then others in terms of the spread of such practices. According to Colonel A. Tebloyev, Military Prosecutor of the Republic of North Osetia — Alania, “Exploitation of servicemen as a cheap labor force has taken catastrophic dimensions in our republic.”81 The Council of Servicemen’s Parents of the Belgorod region reports that personnel enlisted in military unit #93203 (village Sputnik, Republic North 78 “Everything for Sale,” North Osetia (#116, 2002). Y. Tishchenko, “A Soldier Died at a Farm,” Vremya Novostey (#118, 2002). 80 Regional Report “Human Rights Situation in the Kurgan Region — 2002,” drafted within the countrywide monitoring effort coordinated by the Moscow Helsinki Group. Available at www.mhg.ru. 81 “Everything for Sale,” North Osetia (#116, 2002). 79 59 Osetia — Alania) are assigned to work for the villagers. The going price is 100 roubles per soldier per day.82 On July 29, 1999, several months before the end of his service, junior sergeant M. Fedorov from the now disbanded army regiment #503 was “rented out” to a local businessman. However, after the completion of his job, Fedorov was not returned to his unit, but was taken to the Dagestan Republic. He managed to return home only in November of 2002. In the meantime, he was put on the deserters’ list by the prosecutor’s office of the garrison. According to Fedorov, exploitation of enlisted personnel as forced labor is a common practice in the North Caucasus.83 ARTICLE 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. As one can see from Paragraph 1, Article 9 of ICCPR, it is adherence to the established national legislation governing the relevant liberty-deprivation measures that acts as the principal requirement for the legality of either arrest or detention. In connection with this, it ought to be pointed out that in the Russian Federation (particularly over the reported period) cases of individuals being arrested or detained arbitrarily occur rather commonly. In the sections below the more pronounced violations of the domestic criminal procedure legislation will be covered, including those violations related to the application of the newly adopted (July 1, 2002) RF Criminal Procedure Code, which relates to matters involving arrest and detention. Understandably, these violations have come as a result of the systemic deficiencies seen in Russian law that inevitably lead to the breach of the requirements of Article 9 of ICCPR. * * * The applicable law carries no requirement to record the actual time an individual is detained. Thus, in practice, the actual detention and custody record times can be separated by a few hours or even a few days. I. The Center for Assistance to International Protection has knowledge of a large number of cases where such violations have occurred, which enables one to be able to conclude that these unlawful activities can be characterized as common practice. By way of example, in the R. Belevitsky case (Nikulinsky court, Moscow) the suspect was detained on October 11, 2000, while the relevant detention protocol was made one day later (October 12, 2000), which ran counter to the provisions of Article 122 of the then-active 82 Regional Report “Human Rights Situation in the Belgorod Region — 2002,” drafted within the countrywide monitoring effort coordinated by the Moscow Helsinki Group. Available at www.mhg.ru. 83 G. Ryavkin, “Two Soldiers, Two Slaves,” Izvestia (#210, 2002). 60 old RSFSR Criminal Procedure Code. When Belevitsky was unlawfully detained, he gave testimony and perjured himself in the process.84 Particularly noteworthy is the fact that, as they suffer unlawful detentions, the detainees are often manhandled and incriminate themselves under assorted pressures. When such facts become known to the practicing judges, they normally remain unresponsive. Following the inaction of the new RF Criminal Procedure Code, such cases continued to be reported by human rights monitors from different Russian regions. This, in particular, is due to the fact that Article 92 of the RF Criminal Procedure Code does not carry any provision related to how soon the detention protocol should be made after the actual detention of a person. The law decrees that the detention protocol should be made within three hours of the delivery of the suspect to the relevant investigator’s or prosecutor’s office, rather after he has actually been detained. So, until the suspect has been delivered to the said officials, he/she can legally be in detention for an indefinite stretch of time. The current wording of the applicable provisions holds no mention of the actual detention time. This can be confirmed by Annex #12 to the RF Criminal Procedure Code, the wording of which provides for the time the detention protocol should be made and for the time of detention by an investigator (inquirer), rather than by a regular policeman. At the same time, detentions, as a rule, are carried out not by the investigator (inquirer) in his/her office, but by street patrol policemen, operative group policemen, etc. II. Detention protocol generally holds no mention of the grounds for detention, the matter being stipulated under Article 91 of the RF Criminal Procedure Code. Oftentimes, a person can be detained with no grounds whatsoever: a policeman might deem the looks or ways of some members of concrete ethnic groups (for example, Chechens) suspect. The detention can be performed either on the street or on residential, public, or business premises. It often happens that the detention protocol includes the following motivation for the detention of a person: “can flee,” the grounds for which fail to be stipulated by Article 91 of the RF Criminal Procedure Code. Notably, this sort of concern generally remains unsubstantiated. III. The ruling on the application of restriction measures carries no grounds stipulated by the provisions of Article 97 of the RF Criminal Procedure Code, pursuant to the applicable international requirements and standards that hold an exhaustive list of motivations for the application of that or other measures of restriction. Namely, there must be sufficient grounds to believe that the accused: • • • can escape from the inquiry, investigation, or court; can continue being engaged in criminal activity; can hamper the proceedings of a criminal case (by way of intimidating the witnesses, destroying the evidence, etc.). According to lawyers employed by the Center for Assistance to International Protection, it is common practice for investigators and courts to fail to mention a single legally prescribed motivation for the application of that 84 Here and onwards all observations are based on the findings secured by the Center for Assistance to International Protection. Also see more specifics about this case in the comments on Article 14 ICCPR. 61 or other restriction measures, instead merely referring to the gravity of the charge being filed. This is particularly intolerable when custody is chosen as the appropriate measure of restriction. By way of example, in the T. Miminoshvili’s case (2001—2003) different courts had repeatedly ruled to keep the suspect in custody, because he was charged with committing a very grave crime and extra time was needed to work with the evidence. Yet another case ending with such a decision was last passed following the adoption of the new RF Criminal Procedure Code. Obviously, this relates to the fact that the new judicial procedure for the application of restriction measures has done little to change the long-lasting punitive strategies, and has failed to bar the use of unlawful and ungrounded detentions or arrests. IV. Detentions have often been extended without any regard for due requirements. Whenever such moves are made, the courts are required to proceed in compliance with the provisions of Article 97 of the RF Criminal Procedure Code stipulating the grounds for restriction measures. Notably, the gravity of the charge being filed can be taken into account as one of the factors (pursuant to Article 99 of the RF Criminal Procedure Code). However, the conditio sine qua non for application (or extension) of the chosen restriction measure should be the availability of one of the relevant grounds or motivations listed under Article 97 of the RF Criminal Procedure Code. In order to make any definitive conclusions about the said legal requirement being breached in the country, or about how human rights issues are actually treated in Russia, it would suffice to refer to the Fifth Periodical Report of the Russian Federation where Paragraph 66 reads as follows: A decision to extend the given detention can only be made by a district court judge, unless there are sufficient grounds to alter or lift the pertinent measure of restriction, for any length of time within six months. This fragment clearly shows that Russian courts primarily address the question of absence of sufficient grounds for altering the relevant punitive measure, rather than considering the problem of the availability of legally prescribed grounds for extending the given detention, thereby ignoring Paragraph 3, Article 9 of ICCPR that features the principle of “pre-trial release presumption.” The Russian judicial system has yet to embrace that guideline. To provide another example, in the case of V. Shukhardin and other cases, while ruling on extending detentions for the accused prisoners that had already been in pre-trial custody for over four years, the Omsk regional court determined the following: In view of the fact that the current detention terms for Shukhardin, Gorfina, Matiush and Gurin expire April 1, 2003, they shall be held in continued custody for another three months through July 1, 2003. V. There is no procedural act prescribing the application of detention measures between the time a given case is filed and the time a relevant court has scheduled the pertinent hearing. This circumstance serves to produce situations where the given pre-trial arrest sanction applied in the course of pre-trial investigation has already expired and no new measure 62 has yet been applied. A detainee can find himself/herself facing such conditions for a stretch of time ranging from a few days to several weeks. By way of example, in the R. Belevitsky case the relevant prosecutorial sanction expired December 12, 2000, while the case materials were delivered to the court January 4, 2001, with the judicial sanction for R. Belevitsky to be kept in continued custody issued as late as January 11, 2001, by the Moscow-based Nikulinsky court. Notably, until that rather late date no court decision on the application of any punitive measure in regard of Belevitsky had been passed.85 Similar developments occurred across the entire spectrum of cases prosecuted through July 1, 2002 (at which time the old Criminal Procedure Code was still active), the practice generally being in line with the applicable legislation. Following the enactment of the new RF Criminal Procedure Code, things have remained unchanged for the most part in this particular area. In the T. Miminoshvili case at the close of 2002, with the new Criminal Procedure Code already being in operation, the judicial sanction for the accused to be kept in custody in the course of early investigative efforts had expired by the time the case materials were filed by the court. It was only 11 days later that the court ruled to “have the restriction measure extended” while providing no motivation to that effect. * * * 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Russian investigators have maintained the practice of keeping the detainees unaware of the reasons for their arrests or charges leveled against them. Evidently, this has to do directly with the fact that no arrest report is filed immediately following the application of a detention measure. In the R. Belevitsky case it was fully confirmed that following his detention on October 11, 2000, he was held in custody for one day with no charge brought against him, particularly given that he was never officially passed as a detainee because no detention protocol was filed.86 What is more, as they go about collecting the requisite body of evidence, Russian investigators like to keep the detainees unaware of any charges that could be leveled against them in court. Notably, T. Miminoshvili was accused in absentia, and was taken off the “wanted” list. However, following his detention on April 7, 2002, it was only four days later that he was arraigned. It often happens that once investigative efforts are completed, new charges are raised, and it is only then that the detainee comes to know the true reason for his/her arrest. Given the circumstances, throughout the investigation period the prisoner naively builds up his defense against the expected charge, only to find out in court that he is accused of committing a much graver crime. For example, in the case of minor S. Akoulinin (the relevant sentence being passed in 2001), in the investigation stage the said 85 86 Also, see more specifics on the case in the section on Article 14 of ICCPR in this report Ibid. 63 young man had been steadily accused of carjacking with no intention of making a theft. However, in the end he was charged with committing car theft, a much more grave felony.87 The new Criminal Procedure Code fails to safeguard the rights provided under Paragraph 2, Article 9 of ICCPR. The new Criminal Procedure Code allows for a person to be held in custody for two days (Article 94) with no charge being raised. Moreover, a judge can add another detention of up to three days prior to filing a charge. Clearly, a five-day detention with no raised charge appears to be too lengthy, and thereby running counter to Article 22.2 of the RF Constitution and Article 9.2 of ICCPR. Notably, Article 100 of the RF Criminal Procedure Code serves to aggravate the plight of detainees in Russia. It allows for the suspect to go for up to ten days with no charge brought against him following his/her detention or official application of a relevant restriction measure. Obviously, this procedure is at odds with the requirements for “promptness.” * * * 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power, and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 1. Updating the applicable legislation to improve the procedure for applying measures of restriction in the form of detentions has not produced a notable shift in the practice of making arrests Throughout the period following the Fourth Periodical Report of the Russian Federation and ending July 1, 2002, all arrests had been performed based on the sanction of prosecutors of different seniority. Notably, this practice was maintained despite its violation of Paragraph 3, Article 9 ICCPR as well as its violation of the RF Constitution. Starting July 1, 2002, arrests have to be sanctioned by the court, following the relevant petition submitted and endorsed by the prosecutor. However, in all actuality, no meaningful improvements have come to pass, which can be explained by the fact that courts are always ready to sanction an arrest while overlooking the fact that the police are breaking the established detention rules, as well as often disregarding the absence of grounds for application of detention. Relative reductions in the number of arrests directly following the enactment of the new Criminal Procedure Code have served to produce a newly established procedure for the application of detentions in order to avoid excessive arrests that is seemingly functional and effective. To specify, the drop in the total number of arrests came to pass in the initial stage immediately following the introduction of the newly established procedure for 87 Also, see more specifics on the case in the section on Article 14 of ICCPR in this report. 64 the application of detentions, at which time the judges were temporarily poorly equipped to handle this legal novelty. As time went by, the numbers of arrests started to rise on a steady basis, and now there are solid grounds to predict that in the near future the old level of statistics for detentions will be restored. Admittedly, the poor performance of Article 108 of the RF Criminal Procedure Code cannot be noticed by the public yet, given that detention-related matters are generally addressed in closed court sessions. Despite the fact that these issues are now decided by the court, their consideration remains perfunctory (just like in the past), with no substantive particulars or circumstances ever receiving an in-depth inspection. By way of example, on April 11, 2003, the police detained the suspect S. Skriabin who was then unlawfully held in custody for nearly half a day (at night on April 11—12), with no detention protocol being filed. What is more, he was badly beaten up by the police (the defense holding convincing medical evidence to that effect). However, when Skriabin’s defense attorney made a statement of all these facts before the court considering the question of Skriabin’s detention and demanded that his client be released, Judge E. Ivanova of the Tagansky inter-municipal district court, Moscow, not only refused to meet the request, but even had the April 12, 2002 court ruling completed and passed with no mention of Skriabin being manhandled by the police and unlawfully held in custody. This happened despite the fact that all those violations had been duly mentioned by the defense in the relevant written application and described in detail by Skriabin. As a matter of fact, this is a fine example of a judge helping the police cover up their criminal acts. In the meantime, as they proceeded to introduce the new judicial procedure for the application of detentions, Russian lawmakers maintained that the courts and judges would be independent operators, capable of reliably putting in check the long-lasting arbitrary moves on the part of the enforcement structures. Alas, the objective (as can be clearly seen) still remains to be achieved. Given the prevailing scene, the latest legal novelties (particularly the newly adopted Criminal Procedure Code) have not yet produced the desired (and seemingly evident) positive shifts. 2. Burden of proof on the issues of the accused being held in custody For the issue of the application of custody as a measure of restriction to be decided in the positive, the prosecution should not necessarily provide absolutely convincing arguments to substantiate the need for such a measure. As a rule, the state-run prosecution would confine himself to making a statement to the effect that the given detainee is accused of committing a grave crime warranting a prison sentence. Notwithstanding the adoption of the new RF Criminal Procedure Code, Russian prosecutors continue to forgo in their statements the legally prescribed presentations of the circumstances that could warrant an arrest (Article 91 of the Criminal Procedure Code). This dimension has already been covered in detail in the comments on Paragraph 1, Article 8 of ICCPR. 65 3. Can the currently applied regular pre-trial detention term for the accused be regarded as reasonable? Paragraph 1, Article 109 of the RF Criminal Procedure Code reads that “the term of detention for the accused can not exceed two months.” However, it can last beyond six, twelve, and even up to eighteen months pursuant to Article 109 of the RF Criminal Procedure Code (Paragraphs 2 and 3) with regard to individuals accused of committing grave and very grave crimes. The very fact that the accused can be kept in a pre-trial detention center for months or even years on end can only show that either Russia is overburdened with highly complex criminal cases, or that the government pursues the wrong set of judicial policies. The latter speculation appears to be more to the point, because it can very much be inferred from the case of R. Belevitsky who had to spend two years (2000—2002) in two Moscowbased pre-trial detention centers.88 The so-called spy cases that had been covered in the reports of Amnesty International in 2001 and 2002 deserve special mention. Those are the cases of G. Pasko, V. Moiseev, I. Sutyagin, and V. Danilov. In each of these cases, the pre-trial detention terms were overly lengthy and unreasonable. I. Sutiagin (arrested in 1999) continues to be held in custody (for nearly three and a half years now), with the trial still pending. Following the initial court hearing of the case, no verdict was passed. The case was dispatched for further investigation on account of the defendant’ rights being violated. Importantly, his principal right. At the same time, his most important right — the right to liberty — was not restored by the court. As it looked into the V. Moiseev case in July 2000, the RF Supreme Court overruled the previous court’s decision of lack of convincing evidence for Moiseev’s guilt, and sent the matter for new judicial consideration. However, the Supreme Court did not order to release Moiseev from custody, and he had to suffer the conditions of confinement for another year while waiting for a new court ruling.89 In all of these “spy cases,” just like in the Kalashnikov v. Russia case, in which the European Court of Human Rights ruled in July 2001 that any reasonable term of pre-trial detention had been exceeded, there are some complex particulars that nonetheless fail to justify such lengthy periods of detention. On the other hand, should one take a closer look at the R. Belevitsky case, one could hardly find any complex circumstances or special gravity of the offense committed. Notwithstanding, the young man had to spend a year and a half (detained October 11, 2000 — sentenced in April 2002) in confinement.90 In all of the aforementioned cases there had been lengthy interim periods when the courts would not hold the relevant hearings for a range of reasons, such as lack of transportation to bring the defendants to the courtroom, no-show of the witnesses for the prosecution, judges being temporarily disabled or overburdened with too many pressing matters, absence of lay-jurors, or even judges being on vacation. In addition, despite the hearings being repeatedly rescheduled for valid or not-so-valid reasons, all 88 89 90 Also see more specifics about the case in the section on Article 14 of ICCPR in this report. Ibid. Ibid. 66 applications made by the defense to have the defendants released, pursuant to the generally accepted rule, have been left unsatisfied, just like the relevant causational appeals. * * * 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. Within the reporting period, this particular right had been regulated in Russia through application of Article 2201 and Article 2202 from the old RSFSR Criminal Procedure Code. Notably, the newly adopted RF Criminal Procedure Code carries no special provision dedicated to this right. Many lawyers view this as a generally positive and democratic change, as Article 125 of the new RF Criminal Procedure Code endows the applicant with wide possibilities to appeal against any violation committed within the frames of the investigation. Also, Article 220 of the old RSFSR Criminal Procedure Code provided shorter timelines to tackle this kind of complaint (within three days) — now, with the new RF Criminal Procedure Code in place, Article 125 allows for similar appeals to be considered within a longer period, i. e., five days. However, it should be emphasized that the old three-day timeline was nearly never been observed by the courts, with the prisoners waiting for long days, weeks, and even months for their cases to be tried. One prime example of this can be found in the “Smirnova v. Russian Federation case, which the UN Human Rights Committee found admissible in 1998. * * * 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The applicable law (Article 1070 of the RF Civil Code) provides for the compensation of damages made payable to the person who has been unlawfully detained by the police, the fact having to be confirmed by a court of law. In reality, it is quite a great challenge to have this right implemented, because it is very rare for a court of law to confirm that a given person has been unlawfully kept in detention. What is more, even with the relevant court order being secured, it would still take tremendous effort to be compensated for the damages sustained. To provide yet another example, the sentence regarding G. Mikadze was altered by the Moscow city court on April 5, 2001, yet it was altered in such a manner that by the time the judgment was passed G. Mikadze had already spent a few months longer in detention than was stipulated by the updated sentence. All attempts to be compensated for the damages sustained merely led to his being stripped of all civil rights and in essence deprived of Russian citizenship. 67 ARTICLE 1091 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. As it is justly noted in Paragraphs 70, 72, 75, 76 of the Fifth Periodical Report of the Russian Federation, during the period of 1994—2002 Russia has undertaken a number of measures to humanize the criminal implementation system (UIS), which has had a positive influence on the conditions of prisoners. Yet, at present it is impossible to claim that in Russia prisoners have been ensured humane treatment and conditions which guarantee the respect of their human dignity. At the end of 2002, the Moscow Helsinki Group in partnership with human rights organiations organized the monitoring of prisoners’ conditions in all 89 regions of Russia. The monitoring conducted by human rights organizations revealed mass and systematic violations of the UN Standard Minimum Rules for the Treatment of Prisoners. The monitoring effort revealed, in particular, that only one half of the Russian Federation’s regions ensure healthy feeding of prisoners. In other regions,92 prisoners, including those who have tuberculosis and need improved rations, do not get the necessary products in sufficient quantity. Cases of dystrophy were registered, although their number went down in comparison with previous years. Limited food rations are still used as a means of disciplinary punishment in accordance with Article 118 of the Criminal Implementation Code (UIK) of the Russian Federation. In the Leningrad, Bryansk and Kirov regions, the administration of correctional institutions denounced the limiting of food rations for penalized prisoners, while in other regions limited food rations are still used to this purpose. Prisoners do not always receive necessary medical aid. Practically everywhere prisoners, and especially those under investigation, have great difficulty finding access to medical aid. Only the prosecutor’s office surveying the Karelia Republic received 31 complaints on the refusal to provide medial aid93 in 2001. In most correctional institutions, prisoners face great difficulties in maintaining personal hygiene and retaining dignified appearance due to the in91 When preparing this section, we used the results of the monitoring of the conditions of prisoners in Russia provided by the Moscow Helsinki Group, as well as the information presented by the Krasnoyarsk Territory Foundation “Legal Protection,” Nizhny Novgorod Committee against Torture, Center for Assistance to International Protection, and Center for Assistance to Criminal Justice Reform. 92 In the Karelia Republic, in the Astrakhan, Bryansk, Voronezh, Kirov and Rostov regions in particular. 93 Regional Report “Penitentiary System in the Karelia Republic — 2002.” 68 sufficient supply of hot water and hygienic means. Women are those who suffer most from such deficiencies. Normal transportation conditions of prisoners are still not ensured. According to the Chief Department for Penalty Execution data (GUIN), as the situation stands “for January 1, 2000, transportation of prisoners under guard is organized in 190 special railroad cars when the norm requires 211 cars, and 473 special trucks, when the norm is 735 trucks.”94 Due to the deficit in transportation means, prisoners are transported in an extremely narrow space where sufficient ventilation and lighting is absent. Transported prisoners do not get enough water, if any. They either get little food or no food at all during transportation, no matter how long the route is. In pretrial detention facilities (SIZOs), Paragraph 9 of the Standard Minimum Rules on premises for keeping of prisoners is absolutely not observed. According to the Chief Department for Penalty Execution, in Russia as a whole pretrial detention facilities have only 1.7 m2 per person, and some institutions have 0.5 m2 per person. Pretrial detention facility cells where prisoners are kept do not have, as a rule, sufficient ventilation, and do not always have proper lighting. Practically all pretrial detention facilities in Russia have toilets in the same room where prisoners are kept. And the toilet has often no screen around it. On July 15, 2002, the European Court of Human Rights reviewed the Kalashnikov v. Russia case and judged that the conditions in which Kalashnikov spent five years in the Magadan pretrial detention facility violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Russian government informed the European Court on the measures to improve the situation in the penitentiary system as a whole and in the Magadan pretrial detention facility in particular. Yet, even now the prisoners of the Magadan pretrial detention facility lodge the same complaints found in the Kalashnikov case.95 Russian authorities claim that the disastrous conditions in which prisoners are kept are not intended violations of their rights, because the conditions are caused by objective factors, in particular the state of Russian economy.96 The results of the monitoring effort conducted by the regional human rights organizations and coordinated by the Moscow Helsinki Group confirm that most problems concerning the supply of clothes, food, medical aid, and proper conditions of incarceration are really caused by insufficient financing of the penitentiary system. At the same time, humane treatment of prisoners is a fundamental rule. This rule must be observed notwithstanding the material resources at hand.97 That is, when sufficient means for a large number of prisoners are absent, Russia must take efforts to decrease the number of prisoners. The introduction of the procedure of judicial arrest (i. e., court approval for arrest) has somewhat decreased the number of detainees in pretrial detention facilities. Yet, the measures alternative to arrest (freeing on bail, home 94 V. Zhukov, “The Service Guard Transported More than Two Million Convicted and Detained Persons.” Vedomosti UIS (#2, 2000). 95 The information is provided by the Center for Assistance to International Protection. 96 Paragraphs 81, 82 of the Fifth Periodical Report of the Russian Federation. 97 Paragraph 4 of General Comment #21. (April 10, 1992). 69 arrest, etc)98 cited in the Fifth Periodical Report of the Russian Federation are practically never applied to the suspected and charged persons. Other rarely applied institutions include extrajudicial settlement and simplified procedures of criminal case reviews. Punishments such as limited freedom or obligatory labor are not used at all, although they are envisaged by the new RF Criminal Code. Besides that, there are problems in the sphere of prisoner rights that cannot be explained by just insufficient finances. The monitoring of prisoner conditions conducted across Russia by regional human rights organizations and the Moscow Helsinki Group revealed a considerable number of violations that appear on the part of the penitentiary administration and individual officers. There are, in particular, many complaints of the use of violence on the part of the officers of the criminal penalty implementation system. Thus, a poll of recent prisoners showed that in many penitentiary institutions, punishments for disciplinary offense or actions disliked by the administration include beatings and other forms of corporal punishment.99 Beating by the guards during transportation is almost universal. The interviews of women who are kept in the Oryol, Tomsk, Rostov regions and the Jewish Autonomous District reveal sexual harassment and violence on the part of the persons who ensure the guarding of prisoners.100 The presence of these violations is due to low efficiency of control over the observance of prisoners’ rights. The mechanism to control the observance of prisoners’ rights, envisaged by the RF Criminal Code, contains the right of the prisoner to lodge a complaint under the system of administrative101 and prosecutorial control. Russian normative acts provide the prisoner with the right to lodge complaints, to write petitions and suggestions, to send them to various levels of administration, and to give detailed regulations for the use of this right.102 However, it is not always possible to fully realize this right. Thus, in 2002, the monitoring of prisoners’ conditions revealed that the administration of incarceration facilities of the Perm, Bryansk, Rostov, Kamchatka regions and of the Altai territory often had their prisoners punished for making complaints about the illegal actions of the administration. But even when the administrations of penitentiaries do not interfere with their prisoners lodging complaints and sending them to the prosecutor surveillance, the effectiveness of these complaints is extremely low. Low efficiency of the prosecutor surveillance is explained by the fact that despite the wide powers ensured by law,103 the prosecutor’s office generallydoes not conduct proper investigation of prisoner complaints concerning 98 Paragraphs 65 and 77 of the Fifth Periodical Report of the Russian Federation. This information comes from the Tyva Republic, North Osetia Republic, Buryatia, Mordovia, from the Kursk, Kurgan, Voronezh, Nizhny Novgorod, Perm, Tomsk and Tyumen, Leningrad, and Rostov regions , from the Altai and Krasnodar territories. 100 This information is provided by the Center for Assistance to International Protection. 101 Of the Ministry of Justice. 102 Articles 17 (Part 3 and 7), 21, 39, 40 of Federal Law “On Keeping in Incarceration,” Articles 12, 15, 91 of the RF Criminal Implementation Code, Articles 49, 94—103 of the Internal Rules of the Pretrial Facilities, Sections 3.1 and 13 of the Internal Rules of Correction Institutions. 103 Article 33 of Federal Law “On the Prosecutor’s Office.” 99 70 breaches of their rights: they do not conduct investigations on the spot, and they do not find and interrogate witnesses. Quite often, the prosecutor’s office sends complaints concerning penitentiary conditions to be reviewed and settled by the head of the penitentiary where the complaint originated. Inspection of the penitentiary is also not an efficient way to solve prisoners’ problems. A considerable amount of the inspections of correctional institutions is conducted by the Chief Department for Penalty Execution itself. When conducting such inspections, the inspectors focus on organizational and administrative problems instead of prisoners’ rights. Surveying prosecutors regularly visit correctional institutions. They personally see prisoners, yet, just as it happens with written complaints addressed to the prosecutor’s office, oral complaints have practically no effect. In 1997, the Institution of the Ombudsman was created in the Russian Federation. The Ombudsman has the right to check prisoners’ complaints and to visit penitentiary facilities.104 Also, the offices of Regional Ombudsman have been introduced in 15 regions of Russia, but their potential for controlling the situation has substantial restrictions.105 The influence of Ombudsmen on the situation in penitentiaries is still inconsiderable, which is in many ways explained by inefficient personnel and resources. It is doubtless that civilian oversight of penitentiaries could have made up for the faults in the existing control mechanisms. The bill “On Civilian Oversight of Human Rights Observancein Incarceration Facilities and Promotion of their Functioning on the Part of Public Organizations” was adopted by the State Duma in 2000, but was then refuted by the Federation Council. When both Chambers of the Russian Federal Assembly agreed on the final version of the bill, it was not adopted due to the negative reaction of the RF Government. To note, the reaction of the executive branch can be explained by the fact that despite the compromise achieved in this draft law, which was agreed upon with human rights organizations and supported by them, the government could not accept “any control over government institutions by public organizations.”106 Besides the low efficiency of control over penitentiaries, it is necessary to note the insufficiency of specific measures aimed at preventing torture and cruel and degrading treatment of prisoners. The one positive measure in this area is the transfer of the penitentiary system to the jurisdiction of the Ministry of Justice, which does not detect and investigate crimes. Yet, not all pretrial detention facilities were transferred to the Ministry of Justice’s jurisdiction. Thus, the FSB pretrial detention facility Lefortovo in Moscow was not transferred to the Ministry of Justice jurisdiction. As a result, all persons whose criminal cases are investigated by the FSB bodies are completely under the control of the state prosecution, and this promotes violations of their rights.107 Besides this, all temporary detention facilities (IVS) of the Ministry of Internal Affairs remain under this Ministry’s jurisdiction, and suspects can be detained there anywhere from three 104 Article 23 of Federal Law “On the Ombudsman.” They, in particular, have no right of free admission to penitentiaries. 106 The Response of the RF Government #494p-P4 of August 16, 2001, signed by the Vice Chairman of the Government of the Russian Federation V. Khristenko to the draft law tabled in the State Duma and Federation Council of the Russian Federation. 107 Information provided by the Center for Assistance to International Protection. 105 71 days to several months. During the period when the main part of the criminal case’s evidence is collected, prisoners are under absolute control of the criminal prosecution, which is the exact situation in which prisoners are likely to be tortured. Besides that, even if a person is placed in a pretrial detention facility (SIZO), he/she can be transferred back to a temporary detention facility for the conduction of investigation operations, which can sometimes last for long periods of time since pretrial detention facilities and temporary detention facilities can be located in different towns. In 2002, human rights organizations received disturbing information that prisoners were once again being tortured in order to make them confess to crimes, both in pretrial detention facilities and in correctional institutions which are now under the jurisdiction of the Ministry of Justice. During the period from August 2002 to January 2003, for example, human rights organizations of Nizhnii Novgorod alone received five complaints from pretrial detention facilities and correctional institutions of beatings aimed at extorting evidence and forcing confession.108 This phenomenon is obviously caused by the activity of so-called “operative groups” or “operative services,”109 which are employed not only to detect and prevent crimes committed or planned on the territory of penitentiaries, but also to detect crimes committed outside these institutions.110 In July 2002, in particular, in pretrial detention facility IZ-52/1 Leonid Volkov, a minor, was beaten to make him confess to a murder.111 Simultaneously, the investigators attempted to use the same means to force another minor, Andrei Osenchugov, to confess to a series of robberies. The evidence given by the victims and their cellmates shows that this “crime detection work” was organized by Muravyov, an officer of the operative department of the pretrial detention facility; the actual beating was carried-out by two adult prisoners who were placed into the cell with underage inmates by the officers of the pretrial detention facility for that purpose.112 This case was revealed only due to the fact that during the court session, which took place two days after the torturing, A. Osenchugov felt bad. A doctor was called who registered bodily damages. Later, the document which confirmed bodily damage provided the basis to open investigation concerning the circumstances that led to them. To note, as a rule, a prisoner does not have access to an independent medical expert, since the medical personnel of penitentiaries (with the exception of temporary detention facilities) is made up of the Ministry of Justice’s officers subordinated to the head of the penitentiary, instead of “civilian” physicians. Information coming from other incarceration facilities makes it possible to claim that the medical personnel of incarceration facilities are often forced to succumb to the demands of the operative department. In some correctional institutions of the Bryansk region, in particular, physicians were not able to send a prisoner to the hospital if the operative department forbade it.113 108 Information provided by the Nizhny Novgorod Committee Against Torture. Which act according to Article 13 of Law “On the Operative-Investigation Activity.” 110 Article 13 of Law “On the Institutions and Organs Executing Punishment,” Rule 13 of the Internal Rules for Pretrial Facilities. 111 A testimony of the person who committed the crime which provides the base to open criminal case and to pursue investigation, which is also the evidence of the guilt of the given person. 112 Inspection materials of the Nizhny Novgorod Committee Against Torture. 113 From an interview with a recent prisoner. Facility #OZh-118/3 (Pereleshino railroad station). 109 72 ARTICLE 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. The right to liberty of movement and freedom to choose one’s residence in Russia is laid down by Paragraph 1, Article 27 of the Constitution of Russia, under which everyone lawfully within the territory of the Russian Federation has the right to move freely and to choose one’s place of stay and residence. In current legislation, this norm is detailed in the Federal Law #5242I of June 25, 1993, “On the Right of Citizens to Liberty of Movement, Choice of the Place of Stay and Residence within the Russian Federation.” Liberty of Movement The aforementioned law does not define the right to liberty of movement, and contains many gaps. In particular, the law largely neglects the question of the objects and territories under regulated access (it only mentions the border-land; closed military townships; closed administrative-territorial units; ecological distress zones; separate territories and populated centers where special conditions and regulations for the life and economic activity of the population have been imposed, because of the threat of infectious and mass non-infectious diseases and poisoning of people; territories under the state of emergency or martial law). As a result, institutions and enterprises of various forms of ownership establish arbitrary restrictions and bans on the movement of people within territories controlled by these institutions and enterprises de facto (regardless of the ownership of land plots and structures). Thus, many mining companies arbitrarily ban movement into large territories of Siberia and the Extreme North. Federal Law “On the Right of Citizens to Liberty of Movement, Choice of the Place of Stay and Residence within the Russian Federation,” which is essentially a law on the mandatory registration at the place of residence and stay, does not contain adequate guarantees against the violation of the right to liberty of movement. It speaks in general terms only about the possibility to appeal to administrative and judicial bodies the actions or omissions violating legitimate rights, but no responsibility is legislatively established for violation of the right to liberty of movement and choice of residence. The possibility to exercise the right to liberty of movement in Russia is made dependent on extraneous, often insurmountable conditions, and is, therefore, unlawfully restricted. A person may move from one populated locality to another only if he/she has a document certifying his identity. A person may travel only if he/she has a ticket, which he must purchase personally in his/her name, and which contains accurate data from the person’s identity papers. To move from one populated locality to another, even for a short time, a person must have money to stay at a hotel or complete the formalities for the right to use some other dwelling, which is subject to many, often insurmountable, procedural restrictions. 73 In Russia, the right to movement per se is violated primarily by the restriction of the right to anonymous movement. Thus, tickets used for railway, water, and air transportation indicate the number of the document certifying the identity of the passenger. When a passenger boards a railway car, ship, or plane, documents certifying his/her identity are checked along with the ticket. In other words, without a document certifying his/her identity a person cannot leave a populated locality even if he/she has a ticket in his/her name. Moreover, even if a person has identity papers, he/she still cannot use the services of transport companies if he/she produces a valid ticket in the name of some other person. This rule has been established by Resolution #277 of the RF Government of March 11, 1999. As to movement by a private car, throughout the territory of Russia the traffic police at stationary posts may check the identity papers not only of the driver, but also of the passengers (especially if the car is registered in some other region of the Russian Federation). If any passenger riding in the car has no identity papers, he/she may be detained and held in custody for up to one month to establish his/her identity without any court decision. It must be noted that the freedom of movement within Russia is considerably obstructed by the introduction of the concept of “place of stay,” which was implemented for the first time in Federal Law “On the Right of Russian Federation Citizens to Liberty of Movement, Choice of Place of Stay and Residence within the Russian Federation” (adopted in 1993). While declaring the right to liberty of movement, this law obliges citizens to register not only at the place of residence, but also at the place of stay. Under Article 2 of the given law, only an institution or a dwelling may be used as a place of stay. Preparation and approval of the rules for registration at the place of stay was fully delegated to the RF Government, which, in turn, related the possibility of registration with many housing and other requirements. This was done in Resolution #713 of July 17, 1995 entitled “On the Approval of the Rules of Registration of Russian Federation Citizens and their Withdrawal from Registration at the Place of Stay and Residence within the Russian Federation.” According to the RF Constitutional Court February 2, 1998 ruling, Paragraphs 10, 12 and 21 of these Rules of Registration were declared unconstitutional, which adds new restrictions to the law. However, the bodies of executive power and, frequently, the courts ignore this ruling. Moreover, residence without registration is punishable by administrative penalties — fines imposed under Articles 19 and 15 of the current RF Code of Administrative Offences. The executive power bodies interpret the choice of the place of stay and residence only as a choice of a concrete dwelling with a prerequisite that there must be some documented right to the use of the dwelling. However, when imposing administrative penalties, the same executive power bodies maintain that the absence of registration in the given populated locality already exhaustively constitutes an administrative offence. By virtue of the July 17, 1995 Resolution #713 of the RF Government, the obligation to register at one’s place of stay arises if one intends to stay at the place for more than ten days. However, this is impracticable: a person must apply to an official responsible for registration (housing authorities) within three days of his/her arrival; then within three days registration officials must pass his/her documents to the registration authorities (police 74 or village Soviet), and within three days the registration authorities must register the citizen. In view of the fact that there is no period of nine continuous work days in Russia, citizens are often unable to comply with the said Resolution, and obtain registration over ten days. The restrictions introduced and applied in Russian regions complicate the existing rules for registration of movement even more. Thus, in Moscow, the allowable period of stay without registration has been reduced from ten to three days, with the period during which a person must apply to the housing authorities for registration reduced from three days to one day. The registration procedure has been made even more complex by the following: • • • • • • • • • • the period of stay has been restricted (45 days, three moths, six months, a year, depending on the category of citizens); all members of the family of the person who lets the newcomer into his/her dwelling must simultaneously come to the housing bodies and state their consent to the registration of the citizen at the place of stay; there must be no arrears on the maintenance payments for the dwelling to be used by the tenant; payment for the communal services must be made in advance for the entire period of the possible stay of the tenant; “state duty” must be paid, although no federal law provides for payment of any duties or levies in the event of registration at the place of stay; a photo of the tenant and sometimes his fingerprints are required; an application for registration is not accepted if it does not bear a note of the local police inspector stating that the arriving person has been vetted in the police files; it is necessary to observe the minimum floor space requirements (6 sq. meters per person, including the person to be registered); official documents have to be produced to confirm the purpose of the arrival (from a hospital, place of study or work, birth certificate, etc.); having made sure that the submitted documents are “complete and correct” the housing authorities still do not accept them, but send the person to the head of the passport desk for an obligatory preliminary talk. It is quite obvious that all this cannot be done within the very short period stipulated by the rules, and that such rules for registration at the place of stay do not facilitate citizens’ exercise of the right to liberty of movement. Moreover, a person becomes victim to harassment and corruption within law enforcement. Choice of the Residence As a rule, the right to choose one’s residence includes the right to freely settle down and live in any locality within the territory of the state, as well as the right of the person who has chosen his/her residence to use all benefits and rights on a par with other people living in this locality. In the Russian Federation, the possibility to exercise this right is made conditional on the availability of a concrete dwelling and a documented right to the use of this dwelling. A person cannot settle down where he cannot register at the place of residence. Moreover, residence without registration is punishable by administrative penalties, and a person may be fined several times if he remains without registration in the same locality. The problems 75 and restrictions which a person runs into when he/she submits an application for registration at the place of residence have been generally described above: the procedure of registration at the place of residence is in many respects similar to the procedure of registration at the place of stay. A person registering at the place of residence similarly runs into many restrictions which are established by regional rather than federal laws. Thus, in Moscow, on top of the restrictions cited above, the documents submitted to the registration authority for registration of a person at the place of residence are sent, without the knowledge or consent of the individual, to a so-called housing commission which considers the possibility of registration at the place of residence, although no such commission is provided for by law. In many cases, this commission delivers a negative decision. As a result, the registration authority refuses to register a person at the place of residence, saying that the regional or local housing commission has refused to allow the person to move into the dwelling. This contradicts Federal Law “On the Fundamentals of the Federal Housing Policy,” under which no administrative restrictions are allowed on the occupation of dwellings. By virtue of Article 54 of the RSFSR Housing Code, a tenant of social housing may, at his/her discretion and with the consent of all persons occupying the dwelling together with him/her, allow any person to live in the dwelling. Therefore, while introducing no formal restrictions on the settlement of a person in a concrete locality, the local authorities violate the law and forbid the person to settle in a concrete dwelling. At the same time, the availability of a dwelling place is a necessary condition for settlement in the locality chosen by a person as the place of residence. Paragraph 1, Article 3 of Federal Law “On the Right of Citizens to Liberty of Movement…” states that registration is introduced to ensure the necessary conditions for the citizens to exercise their rights, and to ensure their fulfillment of their obligations. In practice, this provision is interpreted in such a way that a citizen who has no registration at the place of residence is deprived of practically all constitutional rights. If a citizen of the Russian Federation has settled down on some territory and for whatever reason has not registered at the place of residence, as a rule, he cannot get a job, receive any social benefits, participate in elections, obtain credit at banks, receive medical aid, etc. Cases have been reported when courts refused to accept suits and complaints from citizens who had no registration of residence or have not completed the required formalities. This can be exemplified by the case of S. Smirnov, whose former wife exchanged his flat without his consent while he was serving a prison sentence, and thus deprived him of housing. Because of the absence of registration, S. Smirnov is now unable to exercise any of his constitutional rights. In the past three years, he has initiated and lost 17 court cases, and courts of various levels have not ruled it unlawful that, owing to the absence of registration, he was not allowed to: • • 76 get employment, although suitable vacancies (yard keeper) were available; register the marriage; • • • • • • • • • obtain bank credit in the amount of $30 in accordance with his business plan (selling of ball pens); register as an unincorporated entrepreneur; rent a folding bed and one set of tableware (although the these objects were available at the rental shop); receive a compulsory medical insurance policy; gain admission to a Russian state-owned library; use mobile communication services; have his name entered on the voter list; register as an unemployed person; have his lawsuit accepted. The courts explained the motives of their decisions saying that a citizen must register at the place of residence, and that the absence of such registration prevents the government and private organizations from ensuring the exercise of his/her rights. For instance, commercial banks cannot grant credit to unregistered persons, because this is prohibited by the instructions of the Central Bank of Russia; the Moscow Registration Chamber cannot register a person as an unincorporated entrepreneur in view of the relevant memorandum of the tax authorities, and also because the person cannot be entered into the computer database which at the program level requires mandatory completion of the column “registered at the address.” Under these circumstances it cannot be stated that in Russia an individual may exercise the right to freely choose his/her residence. Neither can it be stated that judicial remedies are effective in this case. Under Paragraph 2, Article 11 of Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” adopted in 2002, a foreign national temporarily residing in the Russian Federation may not change at his/her wish his/her residence within the subject of the Russian Federation, where he/she has been allowed to reside temporarily, or to choose his/her residence outside this subject of the Russian Federation. The applicable laws allow restrictions to be imposed on the movement and residence of foreign nationals and stateless persons on separate territories of the country, but fully delegate the right to establish such restrictions to the RF Government. Sine 1992, the RF Government has periodically updated the list of territories with restricted access, but no criteria and conditions have been established for selection of such territories. * * * 2. Everyone shall be free to leave any country, including his own. In accordance with Paragraph 2, Article 27 of the RF Constitution, everyone may freely leave the Russian Federation. Russian Federation citizens have the right to return to the Russian Federation unhindered. Paragraph 1, Article 2 of Federal Law “On the Procedure of Exit from and Entry into the Russian Federation” lays down that the right of a Russian citizen to leave Russia shall not be restricted otherwise than on the grounds and in the procedure established by this law. So far as foreign nationals are concerned, there are no laws, including the aforementioned Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” that provide such guarantees. 77 A Russian citizen may leave Russia only if he/she has a traveling passport — a document certifying the identity of a Russian Federation citizen outside Russia. According to Paragraph 1, Article 8 of Federal Law “On the Procedure of Exit from and Entry into the Russian Federation,” the passport is issued to a Russian Federation citizen on the basis of his/her written application, which is submitted personally or through his/her lawful representative, by an internal affairs body or the RF Foreign Ministry on the territory of the Russian Federation, or also by the diplomatic or consular mission of the Russian Federation outside the territory of the Russian Federation in cases provided for by the given law. Several documents have to be submitted for receipt of a traveling passport, including the list of organizations where the applicant has worked in the past ten years prior to the submission of the application. A traveling passport is issued to a Russian citizen by the internal affairs bodies for a period of five years, and may be seized at any time for reasons connected with national security. If a citizen has been registered at a place of residence, the law establishes a period of one month for consideration of the citizen’s application for a foreign passport. In the absence of registration at the place of residence, a traveling passport must be issued by internal affairs bodies at the place of stay. In reality, these periods are often exceeded, and it is very difficult for a citizen to receive a foreign passport in the absence of registration at the place of residence or stay. When a traveling passport is to be issued, the person is vetted in the files of the internal affairs bodies and special services. Although the law entitles the person to receive explanations if his/her application is rejected, in reality such explanations are not provided at times. It is noteworthy that the period during which a citizen is banned from leaving the country may be extended without the knowledge or notification of this citizen. The refusal to allow exit from the country based on the fact that the person possesses some information which constitutes a state secret may be appealed to the Interdepartmental Commission under the RF Government or to a court. Children may freely leave the country only with one of their parents provided written consent of both parents, and if any disputes arise the matter has to be resolved in court. These norms particularly affect the rights of children when the location of one of the parents is unknown. If a child who is leaving Russia is not accompanied by his/her parents, the written permission of the guardianship and wardship body and a notarized document from the parents or guardians are required. The exit of foreign nationals permanently residing on the territory of Russia is made complicated by the need to receive an exit visa from the internal affairs bodies of the Federation, a process which sometimes takes weeks. Under no circumstances can stateless person permanently residing on the territory of Russia lawfully leave the territory of Russia, because the series “A” card issued to stateless persons as a document certifying their identity abroad is not recognized by the international community as an identity paper. Therefore stateless persons cannot receive travel documents, unless such documents are issued to them by the structural divisions of the United Nations, such as the UN High Commissioner for Refugees. 78 At present, under multilateral and bilateral agreements concluded by the CIS countries, Russian Federation citizens and citizens of some other CIS countries residing in the Russian Federation may leave Russia and go to the relevant CIS countries if they have a civil (domestic) Russian Federation passport or a civil USSR passport with a note certifying their citizenship of the Russian Federation or some other CIS state. Citizens of the former USSR who have Soviet passports without the note certifying their citizenship, say, Russian Federation citizenship, are deprived of the right to leave their country legally even when they intend to travel within the CIS. * * * 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. From what has been said in the sections relating to Paragraph 1, Article 2, Paragraphs 1 and 2, Article 12, and Article 26 of ICCPR, it follows that these rights are subject to undue limitation as a result of both impracticable procedural restrictions and the pursuance of a policy aimed to limit the migration or to discriminate against certain groups of the population. The right of Russian Federation citizens and foreign nationals to leave the country may be restricted by arbitrary decisions of governmental agencies. * * * 4. No one shall be arbitrarily deprived of the right to enter his own country. The right of Russian citizens to enter the territory of the Russian Federation is practically unrestricted, but those Russian citizens who permanently reside outside the Russian Federation cannot exercise a range of basic rights. A special passport of a Russian citizen permanently residing outside Russia is not recognized as a personal identification document on the territory of the Russian Federation. Therefore, persons holding such passports cannot, as a rule, make any transactions, including acceptance of inheritance, etc. And the restriction placed upon such people which is most important in contemporary Russian conditions is that a person with such a passport cannot register at the place of residence. Theoretically, such citizens can register and receive a civil (domestic) passport at the place of stay. However, in actual practice this mechanism does not work. The recent positive changes in regards to the possibility to receive a passport at the place of stay in the absence of registration at the place of residence do not apply to those Russian Federation citizens permanently residing outside of Russia. ARTICLE 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. 79 The issue of the observation and implementation of Article 13 of ICCPR by the Russian Federation arose when the RF Government Resolution #641 of August 30, 2000, “On the Exit of the Russian Federation from the Agreement on Visa-Free Travel of Citizens of the States-Members of the Commonwealth of Independent States on the Territory of its Members” came into effect. Since that moment, Russia began to review its policy with respect to former USSR citizens — citizens of the countries of the CIS, as well as individuals without citizenship residing on the territory of Russia. This review was completed in 2002 with the adoption of Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” and a package of by-laws in regards to it. The requirements imposed by this law on former Soviet citizens were the same as for all other foreigners, the requirements themselves having become stricter. This resulted in the fact that a large number of citizens of the former USSR — including those who have acquired citizenship in one of the new independent states and those who have not done so — that have legally entered Russia and have not violated any of its laws, found themselves in the position of being illegal migrants due to their inability to objectively comply with the new requirements. These people had been entering Russia freely and without any control since the breakup of the USSR in 1991. To note, until 2001 Article 5 of the USSR Law “On the Legal Status of Foreign Nationals in the USSR” adopted in 1981 providing that foreign citizens may reside in the USSR if they have relevant permission or a residence permit issued by law-enforcement authorities, had not been applied to former Soviet citizens, as opposed to all other foreigners. State authorities never issued any documents explaining whether the 1981 Law “On the Legal Status of Foreigners in the USSR” might restrict the right of citizens of the former USSR to reside in Russia if, prior to the USSR breakup, the requirements and restrictions provided for by this law did not and could not affect these people. Therefore, these people registered with authorities at the place of their stay and residence in the same fashion as Russian citizens. There were no restrictions imposed on them as to the term of their stay in the RF or their right to permanently reside in the country. Residence permits were not be issued to them, and the restrictions introduced for foreign citizens did not apply to citizens of the former USSR, even to the point that some of them were freely employed by state authorities, including the military. Upon Russia’s exit from the visa-free travel agreement in 2000, the situation of these individuals changed quite drastically. Those of them who had been registered at the place of residence were issued residence permits (this process still continues today), whereas persons registered at the place of stay and those unregistered at all found themselves deprived of their rights. Especially citizens of those former states with which Russia had not signed any other agreement on mutual visa-free travel, as well as citizens of the former USSR who had not acquired any other citizenship but were registered as residents on the territory of the former USSR republics (except RSFSR), were seriously affected. It should be noted that many of these people had moved to Russia before the breakup of the USSR. Among them, for example, were individuals who had to leave the Azerbaijan Republic in 1989—1990, or the Meskhetian Turks who also had to flee from Soviet Central Asia at about the same time. 80 Right after the RF Government Resolution #641 of August 30, 2000 “On Exit of Russia from the Agreement on Visa-Free Travel of Citizens of the States-Members of the Commonwealth of Independent States on the Territory of its Members” came into effect, mass verification of employers began on account of their granting employment to these individuals. Their registration at the place of stay and place of residence was stopped. Nationals of the former USSR who had not acquired any other citizenship were compelled to replace their USSR passports with national passports of the states in which they had been registered prior to the breakup of the USSR. In fact, the creation of unbearable conditions forced people to acquire citizenship in these new states. During the same period, from December 2000 through June 2002, Russian diplomatic authorities issued Russian Federation passports in large quantities to individuals residing in territories of self-proclaimed states which had formerly been parts of USSR republics (Abkhazia, Transdnestria). At the same time, numerous factual deportations of individuals who had legally entered Russia and were citizens of those former USSR states with which Russia had not signed new agreements on visa-free travel were observed. Note that deportation cases were not processed officially. For example, in Moscow during the winter-spring of 2000/2001, raids were conducted under the pretence of verifying compliance with the passport regime, which resulted in the apprehension of citizens of these states, as well as individuals whose 1974-type of USSR passports contained stamps of registration on the territory of these states (mainly Georgia). Following this, airplane and train tickets were booked and purchased in the names and at the expense of the persons thus detained. Cases are known where detainees who had no means to pay for their train tickets were retained in confinement until their relatives or friends would come up with the money necessary to cover their travel expenses. Thus, people who had legally entered Russia and had no restrictions imposed upon them with respect to the term of their permitted stay, were deported from Russia solely by lawenforcement authorities, without any court ruling or other appropriate decision. ARTICLE 14 Modifications in Russian Laws with Regard to Judicial Proceedings As noted in the Fifth Periodical Report of the Russian Federation, the Russian laws on legal proceedings and the judiciary have been significantly modified since the last report. In particular, the RF Criminal Procedure Code was adopted on December 18, 2001, and was essentially in effect until July 2002. It promulgated the adversary principles of criminal proceedings, equality of prosecution and defense in a court of law, presumption of innocence, and the right to privacy; it provided for the prosecutor’s oversight and judicial control of the legality of preliminary criminal investigations. Despite the seemingly democratic nature of a number of norms in the RF Criminal Procedure Code, many of its provisions run counter to the international standards for fair proceedings; in certain aspects, they even degrade the status of the accused (suspect) and that of the defense if compared to the previously operated Soviet procedure laws. 81 For instance, the new Criminal Procedure Code allows the judge, to whom the suspect is brought within 48 hours after the actual detention, to grant the prosecution another 72 hours to obtain additional evidence, during which time the accused will remain in custody, although neither the investigator nor the prosecutor can prove the validity of the detention. Furthermore, as the Criminal Judicial Assembly of the Supreme Court of the Russian Federation clarified, the apprehended, when appealing his/her detention in a ñourt of ñassation, has no right to personally attend the proceedings. The apprehension appeal procedure is ineffective for both the suspect and defense. The prosecutor can take from three to even ten days, if he so wishes, to consider the complaint, while the judge has a period of five days to examine the complaint. In practice this means that, as a rule, the prosecutor or judge’s resolution on a complaint will not be relevant, since by the time it is pronounced the suspect will either have been released or formally arrested. The non-appearance of the defense for five days at proceedings, even on valid reasons, leads to the disqualification of the defense chosen by the accused, and to the appointment of an advocate according to the judge’s ruling. The Criminal Procedure Code allows trial in absentia for cases of misdemeanor or less serious offences (punishable by imprisonment terms of no longer than five years). The number of instances in which the hearing of criminal cases can be conducted in camera has been extended; besides, the wording in the relevant laws is indistinct and fuzzy. There are no effective guarantees against falsification of session records by judges. Some categories of cases are difficult to appeal, once the verdict of guilty and the relevant sentence are received. In particular, even if the defendant pleads guilty of a minor or medium offense, he/she cannot appeal the sentence in cassation, referring to incongruity of the court’s conclusions with the actual circumstances of the case. One cannot appeal the judge’s order of the dismissal of the lay jurors, which is used by judges in order to recall acquittals granted by lay jurors through such dismissal practices. We believe that in the spirit of Article 14 of ICCPR the current Criminal Procedure Code should be revised to achieve full compliance with the adversary principle, equality of prosecution and defense, and the observance of the rights of the accused. Individual provisions of Article 14 of ICCPR 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 82 Equality Before the Courts According to human rights organizations, criminal courts normally proceed with full confidence in police testimony and representatives of state bodies in general, while testimony provided by individuals non-compliant with that provided by officials is doubted or totally disregarded by the court, often with no motivation given. For instance, in the case against Roman Belevitsky (2001—2002) there were two groups of contradicting evidence. The court ignored Belevitsky’s evidence completely, as well as the testimony of witnesses of his apprehension, witnesses of his body search, and the medical certificate regarding bodily injuries found on him after his stay at the police station. All the said evidence was defeated by ungrounded testimony of police officers, which then was used as the basis for conviction.114 Access to Justice Formally, the new Criminal Procedure Code provides the opportunity to appeal an investigation and court’s actions (Article 125) in the same manner as Chapter 25 of the new RF Civil Procedure Code provides manifold access to court should any complaints arise about officials’ and/or authorities’ actions, or failure to act, which violate the constitutional rights of citizens. In practice, both lawyers and private persons point out that there is no effective access to court. It is virtually impossible to get an appointment with a judge to file a civil suit. At the same time, documents mailed to courts are often lost, which significantly protracts the proceedings. Thus, an equal access to justice has not been ensured. The practices of courts’ offices on civil cases are the subject of numerous complaints. Inappropriate management of the courts’ offices and the clerks’ style of treating individuals hinder the access to justice even further. Private persons are granted access to the files on their civil cases only two times a week at certain fixed hours. As the cases are rife, long lines of people seeking access are formed. It takes weeks or even months for an individual to get a written resolution on his/her case. In order to ensure access to justice, a new body is being introduced into the judicial system, namely magistrates. Federal Law “On Magistrates” was enacted in 1998. However, the magistrate positions have not been completely manned in all Russian regions, and therefore their duties are performed by district courts, as it is in the city of Moscow. Slow staffing of the magistrates hinders the effectiveness of district courts that, despite their work overload, still take cases of magistrate competence. Additionally, it should be noted that magistrate positions are mainly staffed by former police or other law enforcement officers. This does not facilitate the independence and impartiality of magistrates, as their former professional affiliations predetermine the mindset of the magistrate body in general. Newly appointed magistrates may keep friendly relations with other fellow law enforcement officers, and judge cases prepared by them. Moreover, magistrates are able to independently judge criminal cases punishable by up to five years in confinement. 114 Hereinafter the information on specific cases was collected by the Center for Assistance to International Protection. For other details, see section on Article 9 of ICCPR in this report. 83 As it was justly noted in the Fifth Periodical Report of the Russian Federation (Paragraph 105), the Russian population distrusts judiciary power. However, contrary to what the RF Government maintains, in our opinion it is unlikely that this distrust can be overcome by introducing magistrates or by establishing courts of jury in all regions of the Russian Federation, as it is expected that even once they are in place, this most democratic dispensation of justice will cover less than 1% of all criminal cases. General Standards of Fair Trial Rating the Admissibility of Evidence With the operating Criminal Procedure Code an actual adversary procedure based on the equality of sides cannot be practically ensured. This is predetermined by the imperfection and ambiguity of norms, as well as by the lack of readiness on the part of the judicial community to change its attitudes and eliminate the accusatory outlook, which has been dominating theirs, their predecessors, and their mentors’ mindset for decades. The idea of general justice in judiciary practices was supposed to be promoted by including in the RF Criminal Procedure Code the norms aimed at ruling out inadmissible evidence, in particular, before the trial and within the framework of the so-called preliminary hearing. These norms were introduced in order to prevent the judges from being affected by inadmissible evidence and, thus, from making ungrounded decisions under the influence of such evidence. In reality, the judges deliberately ignore these new norms, saying that the issue of excluding evidence will be considered during the trial of the case or even as late as before the imposition of the sentence in the retiring room. Such practices demonstrate either a complete misunderstanding or ignorance of the norms aimed at ensuring that the entire variety of inadmissible evidence be removed from a lawsuit to preclude its impact on judges. For instance, in the spring of 2003, in the case of Ernan Okampo Himenes, the defense prepared a detailed motion on excluding a number of documents as evidence in connection with various significant violations of procedural provisions. Judge E. Filippova of the Presnya intermunicipal district court of Moscow, however, issued a ruling where, in one phrase, the entire motion was dismissed without specifying any motives or grounds. Courts are not too inclined to exclude inadmissible evidence when imposing a sentence. Specifically, in many cases the defense questions the admissibility of evidence such as the evidence of expert inquiries, the administration and performance of which violate the law. Courts ignore such circumstances and do not exclude the expert evidence mentioned above on such grounds. In many instances, courts use the testimonies of the accused as evidence, which, according to the accused, were extracted under psychological or physical pressure. Thus, forced self-incrimination often becomes the ground for sentencing. Independence of Courts There are several aspects to the actual independence of courts. Russian law provides for a number of guarantees for the financial independence of 84 judges, in particular, by paying their salary from the federal budget. According to the Nizhnii Novgorod Society of Human Rights, judges’ salary averages about 6 000 rubles (approximately $200); the salary of regional court judges runs at 8 500—9 000 rubles (approximately $280—290). The salary funding from the federal budget is not necessarily coming in full. In Moscow, judges are granted additional allowance from the municipal budget, thus making them dependant on Moscow authorities. In addition, Russian legislation provides judges with a number of other benefits and advantages like free municipal housing equipped with a telephone line, and places for children in preschool centers. In accordance with Federal Law “On the Status of Judges,” one order of priority for local administration is their obligation to provide a judge with a comfortable apartment no later than six months from their commission into office. The apartment is to be provided at the expense of the local budget, with appropriate reimbursement from the federal budget coming within six months. Yet, sometimes the reimbursement from the federal budget fails to come. Therefore judges’ housing and wellbeing depend directly on local authorities, making their independence from executive power dubious. Funding of material supplies and facilities for courts comes, as a rule, from the local budget too, which also makes them dependant on local authorities in general. Federal Law “On the Status of Judges” in Article 11.2 provides that federal judges shall be initially appointed for three years, and only upon completion of this term can the judge hold the office indefinitely. In practice it means that during their first years in office judges are quite powerless, the threat of being deprived of their status as a judge is constantly looming over them, thus incapacitating them of making independent decisions, because after three years their status as judge could be denied without any explanation or reason. The order of distribution of cases in Russian courts is of a particular concern with regard to the principle of judicial impartiality. The distribution is performed by the chairperson of the court, and depends solely on his/her own discretion. There is no choosing by lots, waiting lists, or other conditions of random selection of judges. The requirement of drawing lots refers to lay jurors only and is often violated, as seen by the decision of the European Court of Human Rights on the Posokhov v. Russia case. The aforementioned factors contribute to the existence of so-called “sponsored cases,” and the chairperson of the court has free hand to appoint particular judges to work on particular cases. An institute of ‘dedicated’ judges exists off-the-record. For instance, Judge Kusnetsova and Judge Komarova of Moscow city court take, as a rule, cases such as the incrimination of espionage and other lawsuits connected with state secrets, many of which are investigated by the Federal Security Service (FSB). During such trials, the so called “operational follow-up on the case” is performed, which in fact means that FSB officers oversee order in the court room, decide when hearings shall be held or postponed, regulate the access of participants of the proceedings to the court room, and other issues of similar administrative importance. All such trials take place in camera. Moreover, the judge refuses to allow public hearings not only with regard to certain classified issues, but rather the entire case is tried at chambers, including aspects such as a person’s 85 character evidence, motions unrelated to state secrets but related to the violation of the accused’s human and procedural rights. This often predetermines the verdict. On Military Courts From the standpoint of judiciary independence, the system of military justice, and court-martials in particular, are of special concern. 1. Double Subordination of the Bodies of Military Courts Formally Article 5 of Federal Constitutional Law “On Military Courts” proclaims the ‘independence of military courts and military judges.’ However, Article 2 of Federal Constitutional Law enumerates all laws regulating the performance of courts-martial on the territory of Russia — and the list of these laws, as seen from Article 2, is not exhaustive. It means that the activities of military courts, according to Article 2 of the said law, as well as the status of judges in accordance with Article 26 of the said law, can be regulated by an unlimited number of laws pertaining to the regulation of Russian armed forces, including the Federal Law “On Military Duty and Military Service,” which regulates the oath, chain of command, and subordination. All servicemen are under the jurisdiction of the RF Ministry of Defense. Article 35.4 of the said law reads: “The judges of military courts and the Military Judicial Assembly retain the status of servicemen, contracted for military service…” With regard to the judges, the law uses such terminology as “servicemen, attached to military courts.” Moreover, the same Article 35 indicates that “…attachment of servicemen is performed upon a letter of proposal by the Chairman of the Supreme Court of the Russian Federation.” However, it is unclear who actually exercises the attachment. Besides, the military court of missile troops or the navy, for instance, are established and function within their branch or armed service. In any case, it affects their performance. 2. Double Financing and Social Security at the Expense of the Military Establishment Article 32.2 of Federal Constitutional Law “On Military Courts” reads: Provision of military courts, the Military Judicial Assembly and relevant units of Judiciary Department by transportation, communication means, military equipment, service quarters, their maintenance, operation and safety, as well as keeping archives is exercised by corresponding elements of the Armed Forces of the Russian Federation, other troops, military formations and bodies, with actually performed expenditures covered by the Judiciary Department and the Supreme Court of the Russian Federation. The above norm means that the system of military courts is not separated from the armed forces, as the system exists and operates within the frames of the entire structure of the armed forces of the country. Therefore, the influence of the military establishment on the perform- 86 ance of the military court system in organizational and administrative fields is inevitable. * * * 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. Public Statements of a Person’s Guilt in the Media and Statements of Top Executives of the Country The UN Human Rights Committee considered the case Gridin v. Russian Federation (2000) and established that statements of Gridin’s guilt made by the head of the Ministry of Internal Affairs before the court verdict, violated his right guaranteed by Paragraph 2, Article 14 of ICCPR. The Committee referred to the General Comments, which recommend public officials refrain from making early public announcements expressing confidence in a person’s guilt. The Russian Federation was recommended, among other things, to submit information on what would be done to prevent such violations in future. The decision of the UN Human Rights Committee on Gridin’s case has never been followed, and Gridin’s precedent has been frequently replicated by Russian authorities at different levels, including the top level. On the case of V. Moiseev, who was accused of espionage, Vladimir Putin, the then- director of FSB, publicly stated that Moiseev had committed an act of treason in the form of espionage.115 Later, when the guilty verdict in Moiseev’s case was pronounced, V. Putin was already President of the Russian Federation. Expression of Confidence in Someone’s Guilt in Preliminary Court Decisions Russian judges frequently neglect the presumption of innocence. For instance, Judge Bessarabova of the Kuntsevo intermunicipal district court of Moscow has quite a peculiar understanding of the principle of the presumption of innocence. Even before Semion Akulinin et. al. case (2000) was brought before court, she wrote in the admissibility decision that “the accused committed a grave crime.” It’s no wonder that several months later the same judge pronounced a guilty verdict to all accused in the case. To note, the court of higher instance, i. e., the Moscow city court, did not find any breach of the presumption of innocence principle in Judge Bessarabova’s actions. Place of the Accused in the Court Room It must be noted that practically all criminal court rooms have specially equipped spaces for the accused. The place is approximately three square meters in size with seats fenced off from the rest of the room by a metal grate. No wonder the place is conversationally referred to as “the cage” in . Judges often insist that even those accused that are not supposed to be apprehended still be placed in “the cage.” Placing the accused during hear115 Komsomolskaya Pravda (July 1999). For other details, see the section on Article 9 of ICCPR in this report. 87 ings into “the cage” is conducive to creating the perception that the accused is a guilty party well before the pronouncement of the verdict, as the accused is already behind bars. Therefore, the existence of such “cages” in court rooms significantly contradicts the principle of the presumption of innocence. Presumption of Innocence and Burden of Proof. Benefit of the Doubt Presumption of innocence in Russia normally proves not to exist for rank and file members of society. In practice, it is the accused individuals who have to prove their innocence, but even if the accused and the defense produce substantial evidence to support one’s innocence, judges often ignore or dismiss it by saying, for instance, that the court does not trust the witnesses, as they are trying to help the accused avoid retribution for the act committed (such as in the aforementioned R. Belevitsky’s case). The principle of the presumption of innocence, on the other hand, implies that the court shall interpret all unresolved doubts in the defendant’s favor. According to the new RF Criminal Procedure Code, in a number of instances the burden of evidence lies with the defendant. For example, the “circumstances precluding offensive nature of and punishment for an act” are subject to be proven. The defense has to timely submit the accused’s (suspect’s) alibi to the prosecution in a timely fashion; otherwise, in the course of the preliminary hearing the judge would object the motion of calling such witnesses to court for questioning. The defense is allowed to collect evidence; however, its inclusion in the case depends on the will of the opposing side — investigation, prosecution. These officials, as well as the police inquirers, in many cases, have no law degree, but are still entitled to arbitrarily declare the acquittal evidence legally void. This happens when the same bodies deliberately or inadvertently breach the requirements of procedural legislation when collecting excusatory evidence. The defender is not mentioned among persons authorized to check and evaluate evidence. The violation of the principle of placing the burden of proof on the prosecution is fully manifested in many cases, as human rights organizations report. For example, the case of A. Namestnikov’s questionable evidence was originally interpreted by the court in favor of the accused, and he was acquitted in 1999. Nevertheless, the acquitted and released Namestnikov was arrested several months later, tried, and sentenced to seven years of confinement in 2000. * * * 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; As it was noted in the sub-section of Paragraph 2, Article 9 of ICCPR, many defendants are informed about all accusations against them only at 88 the end of the preliminary accusation process, just as it was in the aforementioned cases of Ernan Okampo Himenes and Semion Akulinin.116 Also, the right to be informed of the accusation promptly and in detail is granted not only to those in custody. The suspect or accused shall be informed in writing or orally of what they are accused, containing factual circumstances of the cases and relevant provisions of law. With regard to persons having no command of the language of the proceedings, frequent violations occur concerning the requirement that the accused shall be informed “in a language which he understands.” This requirement was breached, for instance, in cases against many foreign citizens: Nigerian national A. M. (detained in 1997), British national K. H. (1997), Columbian national Ernan Okampo Himenes (2001), US national H. (1997), and others. (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; This right is frequently violated due to the following: 1. The investigation prevents the defendant’s access to evidence during the entire investigation; as a result the accused and his/her defense become unarmed in front of the prosecution possessing the entire body of accusations. Such asymmetry in the rights of the defense and the prosecution is provided by law: the Russian legislation ensures the access of the accused to full evidence against him/her only at the stage of implementation of Article 218 of the RF Criminal Procedure Code, that is upon the completion of preliminary investigation, which can last according to law for six, 12 or even 18 months. 2. The defense council’s access to his defendant, which is especially important at the initial stage of investigation, is often hindered by the fact that the defense council still has no right to visit his/her defendant without special permission from the investigation and court. Even the appropriate decision of the RF Constitutional Court failed to put an end to this practice. (c) To be tried without undue delay; This right along with the right provided by Paragraph 3, Article 9 of ICCPR ensures judgment without unjustified delay, and not only to the confined. This right concerns the general duration of court proceedings, including the out-of-court stage and trials by the court of original jurisdiction and cassation court, as well as all sorts of “re-investigations” and “reexaminations” until the final decision on the case is pronounced. (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; The violation of right to be tried in his presence is quite a rare phenomenon in the Russian Federation. Yet, it does occur in politically motivated cases. An example of this is the case of A. Litvinenko (2002), a former FSB officer, who made a headline-statement implicating the FSB in a number of crimes. He was sentences in absentia by a military court of the NaroFominsk garrison to a prison term, and put on probation. 116 See also information on the case in the section on Article 9 of ICCPR in this report. 89 (e) To examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; Complaints about the violation of this right are quite frequent, according to the evidence provided by Russian human rights organizations. According to the earlier operating RSFSR Criminal Procedure Code, the prosecution would finish the accusatory conclusion (indictment) by providing a “list of persons subject to be subpoenaed,” which the court would never question. On the other hand, the defense motions on calling witnesses would often be overruled, even if their testimony might have been of significance to the case. Violations related to the failure to provide equal conditions for the prosecution and defense with regard to questioning could be regarded as breaches of the same category. Very often, persons are interrogated by the prosecution during the preliminary investigation, giving the prosecution the right to ask the person being interrogated any question, which could ultimately either support or harm the testimony’s legitimacy. The defense, though, is deprived of this right in all cases when the court, contrary to the will of the defense, reads the testimony of a person interrogated during the preliminary investigation without summoning that person to court. No objections of the defense are taken into account in such cases. In spite of the fact that the new RF Criminal Procedure Code contains a direct prohibition of in-court readings of testimonies from witnesses not attending the hearings in person, courts nevertheless often make the decision to disclose such evidence regardless of insistent protests from the defense. (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; The above right shall be ensured by not only having the interpreter attend the proceedings, but also by the precise, adequate translation of the entire litigation. In reality, though, translation is sometimes extended only to the questions addressed to the accused. For instance, in the case of British citizen K. H. (1997) the verdict of the first instance court was annulled by the Moscow city court due to bad translation and the judge’s inaction with regard to the violation of the right of the accused for adequate and complete translation. (g) Not to be compelled to testify against himself or to confess guilt. Most self-incriminating evidence in Russia is extracted by torture or other types of cruel treatment. In spite of the fact that such evidence should be considered inadmissible in accordance with the new RF Criminal Procedure Code, judges often refuse to sustain motions on excluding evidence in connection with torture during interrogation, and testimony obtained through torture is considered admissible by the court.117 * * * 4. In the case of juvenile persons, the procedure shall be such as to take account of their age and the desirability of promoting their rehabilitation. 117 90 See the section on Article 7 of ICCPR in this report. The Russian Federation lacks a system of juvenile justice, although the law provides certain additional guarantees for minors, as well as mandatory participation of a defense council and a qualified pedagogue during investigation. Nevertheless, the punitive nature of criminal judiciary in general extends to proceedings involving minors. Without sufficient grounds, minors often receive imprisonment terms, while their correction could obviously be much more effective in the family, and their isolation from society is not necessitated. For instance, S. Akulinin, who stole a car in collaboration with his friends, was sentenced to three years of confinement, regardless of positive references from his school and local community, a good family background, and the fact that in three weeks he was to defend his thesis. In another case, Judge Afonina of the Gagarin district court of Moscow sentenced two minors to two years of imprisonment for stealing some cutlets and dumplings. The teenagers were obviously undernourished. To note, the father of one of them was an unemployed Chernobyl invalid, and his mother was dead. * * * 6. When a person has been convicted of a criminal offence by a final decision, and when his conviction has been subsequently reversed or he has been pardoned on the ground that a new or newly discovered fact conslusively shows that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proven that the nondisclosure of the unknown fact in time is wholly or partly attributable to him. Russian law provides guarantees of compensation to be paid in the case of miscarriage of justice on the condition that the fact of miscarriage of justice has been established in court. These guarantees are extremely rarely fulfilled for two chief reasons: (1) in Russia, there are virtually no acquittals; (2) the existing procedure of terminating criminal cases on the so called “nonrehabilitating’ grounds,” is often used for the abatement of criminal action. * * * 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. The possibility of the reversal of a judgment, in particular the acquittal, following a supervisory review on the officials’ initiative, has led to the instability of judicial decisions, and the general violation of the right to fair trial, in so much as one of the components of a fair trial is the stability of the verdict pronounced. The parties to the proceedings always found themselves at risk of cancellation of the previous court’s decision. The acquittal cases continue to be reviewed following the prosecutor’s protests, regardless of the ruling by the RF Constitutional Court, which emphasized that the annulment of acquittals after the supervisory review following the prosecutor’s protest was inadmissible. In the case against Radchikov, after a long deliberation an acquittal was pronounced by the first instance court. It was also left in force by the cassation court. However, a year later the prosecutor’s office made a request to review the acquittal, which then was annulled, and the case was returned to court for new consideration. 91 The arbitrariness of the state authorities with regard to the reversal of court decisions is vividly manifested in the case of Chernobyl invalids. After the well known civil case of Burdov v. Russia, when the European Court of Human Rights ruled that non-payment of disability compensation to Burdov was a violation of his rights, numerous similar decisions by domestic courts in favor of applicants were quashed after the “supervisory review.” It should further be noted that many participants in the elimination of the consequences of the Chernobyl nuclear power plant disaster fail to receive their compensatory allowance, regardless the fact that their right for compensation has been confirmed in court. The notion of a fair trial includes the right of an implicated person — be it a criminal or a civil case — to get a final verdict at a certain stage, which can not be reversed under any circumstances. Such an approach lies in the foundation of the legal stability of the state. The above-mentioned cases represent a striking manifestation of the “instability of court decision,” which constitutes to breach Paragraph 7, Article 14 of ICCPR due to the incompatibility of such instability with a person’s right to a fair trial. ARTICLE 17 1. No one shall be subjected to arbitrary or unlawful interference in his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. The right to non-interference in one’s private life (privacy) is supported in the Russian Federation by the Constitution (Article 23), a number of international conventions, and by federal laws. The RF Criminal Code envisions accountability for a breach of privacy, primarily through fines (Articles 137—138). The methods by which privacy is protected by the citizens themselves are generally regulated by the RF Civil Code. Despite this, the level of protection this right actually receives is not estimated to be high. In the Russian Federation, and especially in Moscow, the illegal collecting and distributing of information about private persons and organizations is widely practiced. The most popular types of information include data on the acquisition or sale of cars and their owners, the passport data of Russian citizens, the information of the Moscow Registration Chamber, data on real estate (bought and sold apartments, their size, location and ownership information), information from the Tax Service databases, and information concerning persons who are wanted by the police or who have been found guilty of crimes in court. Government bodies are the sources of this information. This data is illegally recorded on CDs and sold on the streets or through the Internet. Yet, some databases, for instance information attained from the notebooks and finance papers of suspects confiscated by police, are more rare. The cost of a database fluctuates from $10 to $1 500, depending on the topic, size, accuracy, and date of information. Databases on CDs are sold with a software shell that provides the opportunity for search, processing, and analysis of information. Sellers often provide customers with regular updates. 92 In February 2001, “Integrum-Tekhno,” a large commercial company specializing in computer technologies, was involved in an investigation concerning the publication of personal data on the Internet. Early in 2003, the media covered the scandal concerning the break-up of the “Mobile Telesystems” database, a major cellular phones operator. The information of the more than 3.5 million customers of the company, including their home addresses, phones, and payments, was sold on CDs. Special departments formed in the law enforcement bodies are responsible for the detection of computer crime. However, we have not heard of any cases where the supplier, the mediator, or the seller of such a database was held accountable for the violation of privacy. The legal statute of a database of personal data is not defined. Law enforcers do not feel that the presence of guarantees against the interference with privacy in the RF Constitution, or the principle of the direct action of the Constitution, are sufficient grounds to open a criminal case. Russian legislation concerning the protection of private data is far from perfect. The basis for it is provided by the Federal Law adopted in 1995 entitled “On Information, the Provision of Information Systems, and the Protection of Information.” Article 11 of the law contains some general formulas concerning personal data. A list of personal data and the mode of protection should, according to Articles 11 and 21, be established by federal law (“On Personal Data”). Yet even at present, no such law has been adopted. Various bills were tabled in 1998 (authors: deputies O.Finko, Yu.Nesterov, et al.) and in October 2000 (authors: deputies: K.Vetrov, A.Shubin et al.), but the State Duma did not review these drafts. The RF Civil Code refers to non-material benefits protected by law (Part II, Article 150 of the RF Civil Code) in regards to the inviolability of privacy. These benefits include dignity, personal integrity, honour and good name, business reputation, and private and family secrets. If a citizen suffers injury (physical or moral pain) from actions violating his or her individual non-property rights or infringing on other non-material benefits that belong to the citizen and in other cases envisaged by the law, a court may rule that the perpetrator of the injury provide monetary compensation for the injury inflicted (Article 151 of the RF Civil Code). However, there is no information about the practice of suits of citizens that demand compensation of injury inflicted by the publication of personal data in Russia. Observers explain this by the fact that the legislation on which the suitor should rely concerning the protection of privacy is absent, and the sums which Russian courts rule to be paid as compensation for injury are usually small. Article 13.11 of the new RF Administrative Code (which entered into force July 1, 2002) also envisages accountability for a violation involving the “regime of collecting, storing, using and distributing information about citizens (personal data).” But the Administrative Code reads that the above mentioned regime is to be defined by Federal Law “On Personal Data,” which has not yet been adopted in Russia. A separate law on the access to information for citizens is also absent. The legislation contains a bewildering system of generally accessible information and “secret information.” The secret of communication is guaranteed by Federal Law “On Communication.” The guarantees of privacy are also contained in Federal Law “On 93 Operative-Investigative Activities in the Russian Federation.” Federal Security Service provides itself with the possibility to monitor communication with the help of SORM (System of Operative Investigative Measures). After the implementation of the so-called SORM-1 in the telephone network in 1994—1995, the same system (called SORM-2) covered the Internet in 1998. When this system is used, no statistics on the violation of human rights is available; Federal Security Service representatives claim that there are no such violations. Communications operators agree to the use of SORM as a forced compromise. They have different views on the approach to the inviolability of the privacy of their customers. Communications operators try to draw contracts with their customers in correspondence with the demands of Russian legislation, with the expectations of special services and “competent organs,” with their own notions of security and confidentiality of data. If the operator does not agree with the implementation of SORM at his/her communication node, this may cause hard pressure on the part of the authorities (as was the case Volgograd with “Bayard-Slavia Communications,” an Internet service provider). Cases when perpetrators were held accountable for the violation of the secret of correspondence, telephone talk or other kinds of communications are rare. The notion of “personal data” has appeared in Russian legislation recently. Thus, the RF Tax Code (Part I of which was adopted in July 1998) refers the surname, name, patronymic, date and place of birth, sex, place of residence, data concerning passport or other document that identifies personality of the tax payer, citizenship (Paragraph 1, Article 84) to personal data. Articles 85—90 of the RF Labor Code (adopted in December 2001) introduce restrictions on collecting data from the point of view of their size and content. It establishes guarantees that the rights of employees are observed when their personal data is used or transferred, by having them mandate the right to access, copying and correcting his or her personal data, etc. One of the latest legislative initiatives includes a bill “On Communication.” Article 50 of the bill introduces guarantees of protection for the data which the subscriber provides to the communications operator. Information on subscribers (physical entities, though) are regarded as confidential, they cannot be included into any directories or information publications and cannot be used for information services without a written consent of the subscriber. The same conditions are determined for the phone numbers of subscribers. There are no special government structures protecting privacy (a commissar or a commission on privacy/ personal data). The Presidential Court Chamber for Information Disputes (the objective of this quasi-judicial body was to protect the right of citizens to the inviolability of privacy) was dispersed by a presidential decree in June 2000. Privacy is given little attention in the work of the RF Ombudsman. As for public associations, none of them specialize in the protection of privacy. A few human rights organizations conduct, among other things, educational work in the sphere of privacy. Thus, despite a number of positive changes that took place during recent years, the level of the protection of privacy in the Russian Federation is still rather low. There is a need for the legal education of citizens and public servants. It is necessary to gradually overcome the traditional neglect of privacy and to develop a respectful attitude towards this fundamental human right. 94 ARTICLE 18 1. Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in a community with others, or in public or private, to manifest his religion or belief in worship, observance, practice, and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. The enactment of the 1990 Law “On Freedom of Religion” in the Russian Federation brought about an environment of unlimited religious pluralism. In December of 1993, the main freedoms of conscience and religious pluralism were reaffirmed in the RF Constitution, which not only upheld the principle of separation of church and state and the principle of the freedom of conscience, but also introduced the principle of equality among religious associations (Paragraph 2, Article 14). At the same time, the rapid growth of new religious movements in Russia, as well the increase in other known but previously very small religious organizations, became a source of concern among large groups of Russian society, which, for various reasons, did not accept the spread of broad religious plurality. Since 1993, this concern has resulted in a series of attempts to curb the freedoms related to individual and organized religious activities. Such attempts have been translated into relevant legal acts passed in different regions of the country. The new Federal Law “On Freedom of Conscience and Religious Associations” was adopted in 1997. Under this law, all religious denominations that were not officially registered in Russia for a period of at least 15 years lost the right to establish religious organizations, and thus could no longer be involved in religious education, public preaching, economic activity, etc. However, the strength of this powerful and discriminatory instrument was largely undermined by the Ruling of the Constitutional Court dated November 23, 1999. It stated that the provisions of this law were not applicable to those denominations which had been registered in Russia prior to the law’s enactment (the law, therefore, could not be used retroactively, and practically all religious groups active in Russia today had been established in the country before 1997, and had had every opportunity to register before 1997 if they had wanted to). The 1997 Law had superseded all regional legislation in this sphere, but in reality not all the local statutes have been repealed. Moreover, some new local statutes have been passed recently that touch upon the given field. For example, a new Administrative Code was passed in the Belgorod region introducing a fine for “approaching individuals for the purpose of imposing religious beliefs on them,” although no such offence has been provided by federal legislation. 95 It can be maintained that the freedom of conscience (individual choice of religious denomination, individual religious practices, etc.) has been recognized by and large in Russia. There have been no independent confirmations of the claims that members of individual confessions are discriminated against for their religious beliefs while applying for a job. There have been no known cases of persecution of individuals who converted or abandoned their religion altogether. However, it would not be true to state that the right to realize the freedom of conscience in public, i. e., to establish and operate religious organizations, to preach and to teach religion, is fully protected. Many religious organizations have been forced to fight in court against local prosecutor’s office bodies that demand their liquidation. In some cases, the prosecutor’s office even continues to demand that an organization be liquidated on the grounds that it was not reregistered in 1999—2000 (reregistration of all existing religious organizations had been stipulated by the 1997 Law “On Freedom of Conscience and Religious Associations”),118 although such action was specifically prohibited by the Constitutional Court Ruling of February 7, 2002. Although the prosecutor’s office normally loses such cases in court, they nevertheless continue to file similar suits, thus greatly impeding the activity of various religious organizations. For example, a case concerning the liquidation of an organization of Jehovah’s Witnesses in Moscow has been in court since 1999, and the prosecutor’s office is not giving up.119 Also, in a handful of cases, the prosecutor’s office has actually succeeded in liquidating a religious organization. The most recent example is the March 2003 closure of a Pentecostal seminary in Vladivostok on the ground that it did not have a license for educational activities, although no such license is required for religious education.120 The most common type of arbitrary limitation placed on religious organizations is the active opposition from local authorities to the construction of religious cult buildings. Muslims and Protestants encounter such difficulties more frequently than other religious group. In practice, these impediments vary from repeated delays that may last for years to outright refusal to grant a construction permit. As a rule, such problems relate not only to the position taken by officials, but also to protests from various population groups and religious leaders representing the local religious majority (this was the case, for example, during the construction of a Russian Orthodox church building in the city of Naberezhny Chelny (Tatarstan Republic)121, a mosque in the city of Sergiyev Posad (Moscow region), and a RomanCatholic cathedral in Pskov). The fact that such decisions are in conflict with the law does not stop the officials. In April 2003, the Mayor of Yuzhno-Sakhalinsk, F. Sidorenko, in gross violation of the regional court decision, prohibited the construction of a Jehovah’s Witnesses’ praying house, took over the building, and make it municipal property.122 118 See, for example: “Moscow Department of Justice Tries to Liquidate the Kingdom of God,” News.Ru, July 19, 2002. (http://www.newsru.com/religy/ 19Jul2002/gottesreich_mow_print. html). 119 For more details, see the web site of Jehovah's Witnesses: http://www.jw-media.org/region/ europe/russia/nav/trial.htm. 120 G. Fagan, “Court Closes down Bible College.” Forum 18 News Service (http://www.forum18.org/Archive.php?article_id=35). 121 Islam is the dominant religion in Tatarstan. 122 From a “Sakhalin-Kurily” TV program newscast, April 16, 2003 (http://www.gtrk.ru/ news/0416/print/news03.htm). 96 There have been a number of registered cases when local authorities have attempted to prevent the preaching of religious beliefs and the distribution of printed materials of religious organizations. For example, in 2001 the head of the Department for Penalty Execution in the Penza region prohibited the “Living Faith” Pentecostal church from distributing religious materials in local penitentiaries. It is noteworthy that the prohibition was justified by a corresponding “recommendation” from “people in the Governor’s circle.” Following this incident, the distribution of the “Living Faith” Pentecostal Church’s newsletter became hampered throughout the Penza region as police started detaining the newsletter distributors.123 There is no evidence that such unlawful acts are of a systematic nature. However, from time to time, the discriminatory attitude of local authorities towards individual confessions can take the form of a campaign, and thus become quite dangerous. In the town of Chekhov, Moscow region, the head of local administration prohibited the showing of the film “Jesus,” arranged by the organizational committee of Christian Evangelic Churches, claiming that the film promoted “an alien, non-orthodox religion” (this film’s showing was also prohibited in some other towns). On top of that, the preaching house of the Evangelic Christians was set on fire and the lease agreement for the premises was revoked. A priest of one of the congregations was repeatedly beaten. All these actions combined made it impossible for the local congregation to continue their religious practices as a group. This case also exemplifies a situation where unlawful acts towards spiritual leaders are not being carefully investigated by the authorities, which indirectly encourages such forces in society to put their religious prejudices into practice.124 The above mentioned problems are most frequently encountered by religious organizations, whose staff and spiritual leaders are foreigners. These people are often expelled from the country or denied entry visas without proper justification. During the period of 1998—2002, such instances arose in relation to Buddhists, Evangelic Christians, Mormons, adherents of the “Christ’s Church,” and other denominations. It is noteworthy that in 2002, the Roman-Catholics were affected by these practice more than other group: five priests, including a bishop, were expelled from the country. Since the beginning of 2003, the situation with such religious organizations has become further complicated as a result of the introduction of a complex mechanism for obtaining a residence permit under the new Federal Law “On the Legal Status of Foreign Nationals.” A Roman-Catholic priest and a rabbi have been already expelled from Russia in 2003 under this law. In some cases, the mounting pressure on religious organizations is being justified by the fight against terrorism. Most frequently, such arguments can be heard from Muslim spiritual departments, which are largely intolerant towards each other and towards Muslim communities that are not part of such an organizational structure. It can not be precluded that some of the Muslim communities are not involved in anti-constitutional activities, but more often than not authorities’ suspicions of this nature remain unfounded. The resulting actions, though, create severe impediments for religious activities: searches, seizures of literature, prohibition of commu123 S. Lukashevsky, “Freedom of Convictions, Conscience and Religion,” Human Rights in Russian Regions — 2001 (Moscow: Moscow Helsinki Group, 2002). 124 Ibid. 97 nity prayers, etc.125 In 2000, in the Republic of Dagestan, the local authorities fighting against Islamic extremism imposed a legal ban on Wahhabism, a branch of Islam, and introduced religious censorship. The threat of terrorism is often confused with a threat to cultural and religious identity, which is perceived to come primarily from abroad. This threat is actually mentioned in the 2000 Concept of the RF National Security as well as in the RF Informational Security Doctrine. A corresponding term — “spiritual security” — has already become part of the official lexicon, and is being eagerly used by high-ranking officials and political leaders. During the mid-1990s, only new religious movements, called “totalitarian sects,” were perceived as a source of threat. However, no definition of such dangerous groups was ever suggested, while the list of such groups was continuously expanding. As a result of this trend, in the last couple of years some high-ranking officials, including The President’s plenipotentiaries in several of federal districts, repeatedly stated the need to legally ensure the privileged status of the so-called “traditional religious organizations,” which are the seven largest associations of Christians, Muslims, Buddhists and Judaists. A link is being made between religion and ethnicity, which is then being used to justify the dominating position of religious organizations from the “titular ethnic group” in a particular region.126 This trend has not yet been incorporated in any legal statutes (although draft laws to this effect already exist). However, at the regional level, governors and local authorities are often guided by ideological considerations when they allocate funds exclusively to “traditional” religious organizations, or seek their approval when dealing with other religious sects. In addition to the so-called “new religious movements,” the list of denominations subject to severe administrative pressure includes Pentecostals and, since 2002, the Roman Catholics. Imparting a privileged status to “traditional religions” creates a disturbing situation in the sphere of the state run system of secondary school education. Since the late 90s, many regions have introduced basic courses on Russian Orthodox Christianity or Islam as special subjects, depending on the “titular ethnic group” in a particular region. In 2002, the Ministry of Education decided to expand this practice to the rest of the country, and has been working in this direction since then. Although attendance in such classes is voluntary, in practice this principle may be violated, which would violate the legally fixed secular nature of the state-run education system. ARTICLE 19127 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive, and impart information and ideas of all kinds, re125 For more information about the pressure on Muslims in the city of Ekaterinburg in autumn 2002 — spring 2003, check the website “Religion in a Secular Society” at http://religion.sova-center.ru/events/13B74CE/1444B24/14B0714. 126 For more information on this see: A. Verkhovsky, “The Place of Xenophobia in Government Policies,” Nationalism, Xenophobia and Intolerance in Contemporary Russia (Moscow: Moscow Helsinki Group, 2002). 127 For this section of the report, the freedom of speech monitoring findings were used, the continuous monitoring effort being run by the Glasnost Defense Foundation. 98 gardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals. The period of 2000—2003 has seen a radical upsurge in the level of pressure put on print and broadcast media by local administration. At the same time, relevant legislation is being incessantly revisited, which obviously only serves to sow the seeds of chaos in the public information arena. The debates regarding adoption of a new federal law on the media continue unabated for a second year running. Journalistic pursuits have been increasingly regulated by laws that do not bear directly on the press or, in a more general sense, on the information arena. Such laws include the Informational Security Doctrine, certain articles of the newly adopted RF Civil Code, Federal Law “On Licensing Selected Activities,” Federal Law “On Banning Propaganda of Narcotics,” etc. Under the given circumstances, the economic health of regional press and broadcast media operations, as well as their very survival in light of the ongoing confrontations with the relevant federal holdings, has been increasingly predicated upon the political leanings of individual mass media activities. The more loyal operators enjoy a better chance of staying afloat than the opposition-geared vehicles, to say nothing of the politically neutral outlets (the factor explaining why these latter media operations have been struggling to survive in the immature market for advertising services is their reluctance to become politically engaged). In addition, Russian regions have now and again seen assorted cases of threats and criminal violence with regard to journalists and mass media. Every year, anywhere from fifteen to twenty journalists perish across the Russian Federation, with the relevant circumstances being inadequately investigated. The substantive evidence to this end has been provided by our own independent inquiry into pertinent facts surrounding the deaths of the Togliatti-based “Lada-TV” executives and chief editors of the Kasimov-based Meshcherskaya Nov and Moskovsky Komsomolets in Smolensk newspapers. Also, since April of 2000, no definitive results have been secured by official investigators looking into the cases of three Russian reporters from the Tula, Kemerovo, and Kirov regions that disappeared without a trace. Notably, today about 80% of all Russian mass media outlets are either federal or municipal properties, bringing them under the authorities’ control to various degrees. The aforementioned factors have been telling not only of the quality of Russian journalism. The readership appears to be devoid of any opportunity to gain access to the full spectrum of public information, with the engaged press operators known to be variously distorting the available information flows. Conversely, the media vehicles, unwilling to be engaged by the authorities, have to work very hard to keep balance and carry unbiased, critical material, and avoid being targeted by the relevant bodies of administration. 99 * * * On September 9, 2000, President Putin signed the Informational Security Doctrine aimed at governing relationships within the confines of the Russian information arena, ensuring information support for Russian governmental policies and providing for supervision of the existing information flows. Let’s not forget that in August 2000, President Putin characterized the information arena as a “strategic sector directly bearing on matters of state security.” Basically, he equated generic information material with classified defense developments and strategic resources held exclusively by the Russian Federation. Hence, the President of Russia explicitly suggested that the information arena should be under governmental control. By way of example, in a number of Russian regions local administrators have begun to apply the Informational Security Doctrine as some sort of “guidance tool” to justify their arbitrary actions with regard to the local independent media vehicles, referring to the doctrinal rules designed to “regulate” information flows. In particular, in the spring of 2001, nearly two dozens of the Penza regional administration officials (ranging from vice-governors to bureaucrats one rung down) moved to sue four local newspapers, the sought damages being calculated in the millions of rubles. Asked by baffled journalists about the rationale for free-wheeling media operators being incrementally phased out, the regional officials pointed out that they had been guided by the Informational Security Doctrine, rather than by desires of self-interest. To emphasize, the aforementioned Doctrine is not a legislative document binding on government officials. According to the Glasnost Defense Foundation (GDF), which has been tracking the relevant developments for three years, the Informational Security Doctrine represents a basis for introducing anti-democratic amendments into Federal Law “On Mass Media.” To be blunt, the Doctrine actually serves to empower authorities and simultaneously subdue reporters. The document’s ambiguous language conceals quite concrete punitive options. * * * To minimize opposition from mass media, the authorities started to broadly resort to the services of the Federal Security Service (FSB), courts, and, primarily, prosecutors. Thus, the year 2000 saw the launch of the unprecedented “Media-Most” holding case. In the summer of 2000, after the Versiya newspaper ran a string of articles on the sinking of the “Kursk” submarine, the FSB started to put pressures on the periodical’s editors. FSB investigators had four Versiya journalists and a lawyer from Sovershenno Sekretno repeatedly summoned for interrogations that lasted for hours, to say nothing of the fact that the newspaper’s PC containing all their journalistic data was removed. Importantly, attempts had been made to cajole the reporters into disclosing their sources, despite the fact that under Paragraph 4, Article 49 of Federal Law “On the Mass Media” a reporter has to keep his sources confidential. Thus, representatives of state enforcement structures were essentially pressing the journalists to breach the applicable mass media legislation. Courts and prosecutors continued to relentlessly pressure the federal level media and journalists in 2001. The primary target this time was the “TV100 6” television company (MNVK — Moscow-Based Independent Broadcaster). On the regional level, among the most infamous conflicts triggered by the direct involvement of local prosecutors and courts were those in Lipetsk and Voronezh, the key targets being the TVK and GTRK “Voronezh” television companies accordingly. Interestingly enough, the FSB Chairman, General Patrushev, won two court cases against the Noviye Izvestiya newspaper and reporters V. Yakov and V. Chesnokov (the former of the two cases initiated in October 2000 and the latter in August 2001). To point out, no previous head of FSB is known to have been personally involved in litigation with journalists. Over the past three years, the total of actions filed against mass media operations has significantly increased, which likewise indirectly evidences pressures on the media. * * * Interference in the work of Western reporters and publishers with major foreign participation in the charter capital is becoming steadily more frequent. By way of example, in December 2000, A. Streltsov, head of information security from the office of the RF Security Council, and M. Lesin, Minister of the Press, publicly appeared to suggest that Russia is committed to standing up and protecting its information market against foreign mass media activities, ultimately limiting Western media and reporters’ access to information in the territory of the country in order to do so. For example, in March 2000, the “Voice of America” radio broadcasting company happened to be denied its request for a license to operate in Volgograd and Ufa. M. Seslavinsky, Deputy Minister of the Press, came to insist that the license request was denied by the Federal Tender Commission, which is authorized to consider all matters related to granting licenses for the use of assigned federal frequencies within the Russian Federation. Although the “Voice of America” company had no competitor also seeking permission to operate in Russia on the same frequency, the Federal Tender Commission ruled to reject “Voice of America’s” application, and pronounced the proposed broadcasting concept as “lacking promise to help reinforce the sector.” After the “Radio Liberty” (RFE/RL) company moved to reveal its plans to start broadcasting in the languages of ethnic communities populating the North Caucasus, the Minister of the Press, M. Lesin, who had earlier critiqued “Radio Liberty” on a number of occasions, issued a “non-official warning” to the company’s management to the effect that, should the scheduled operations become a reality, “Radio Liberty” would be barred from operation in Russia. Commenting on the possibility of “Radio Liberty” to broadcast in the North Caucasus, A. Zdanovich, official FSB spokesman, said, “Should “Radio Liberty” open a Chechen service, we would not just sit back and look on. FSB would counter whatever comes against Russian state interests.” Another notable cause for concern is the Russian President’s recent decision to place constraints on the rights of foreign publishers and founders of mass media publications. On January 30, 2003, President Putin dispatched a letter to S. Mironov, Chair of the Federation Council, and G. Seleznev, Chair of the State Duma, stating that the head of state had decided to turn down the amendments to the existing Federal Law “On the Mass Me101 dia” passed by the State Duma on December 20, 2001, and endorsed by the Federation Council on December 26, 2006. The amendments were intended to enable foreign outlets and their Russian-based subsidiaries to keep holding their television companies, as long as they had been founded in Russia before August 2001. The problem was that the original constraints had been made applicable to any and all television company founders, the time of founding making little difference. Subsequently, some State Duma member-deputies moved to place no such constraints (established in 2001) on either the founders of television companies that had registered their Russian-based operations prior to the aforementioned date, or on the organizations that had been established or engaged to launch television broadcasting operations before the said constraints were enacted. However, President Putin thought that this “might have the interested parties unequally advantaged when it comes to relationships emerging in connection with mass media operations being founded at different times. As a consequence, those relationships could not be governed through the use of a general set of legal rules. Obstacles would emerge to counter the Government seeking to implement its commitment to create and safeguard the single economic arena and common marketplace, including an information market that leans on mass media.” * * * According to the monitoring findings of the Glasnost Defense Foundation (GDF), up until the spring of 2000, Russian mass media workers were reported missing exclusively in territories of military action, such as Abkhasia and Chechnya. Since April of 2000, however, the GDF monitors have registered four cases of reporters disappearing without any trace under peacetime conditions. In spring of 2000, S. Panarin, correspondent for the Shabalinsky Kray newspaper from the town of Shabalino in the Kirov region, disappeared from public view. On April 13, 2001, S. Korabelnikov, a cameraman for the local “Channel 51” television company in Tula, was reported missing under uncertain circumstances. May 17, 2001 saw the disappearance of V. Kirsanov, editor of the Kourganskiye Vesti newspaper. On December 20, 2001, the Smolensk regional police department ordered a search for S. Kalinovsky, editor-in-chief of the Moskovsky Komsomolets newspaper in Smolensk, the man’s dead body eventually being uncovered in the spring of 2002. On April 13, 2003, the Sovetsky district prosecutor’s office in the city of Tula launched a search for A. Vorobyev, general director of the region’s largest cable television network “Altair,” who was last seen at a parking lot near his own apartment building. Furthermore, GDF has conducted a series of investigations to look into all of the said cases of reporter disappearance. Though the accumulated evidence has been submitted to the relevant prosecutors at the RF Prosecutor General’s Office, none of the cases (including the case related to the death of S. Kalinovsky) has been investigated consistently and effectively enough to produce any meaningful results. 102 * * * In spring of 2001, Russian law enforcers developed and started to apply a new strategy for pressuring assorted mass media operations through the use of advanced technology. The most common approach runs as follows: a newspaper’s editorial office is visited by a team of police officers and prosecutors wishing to examine the local CD-carried materials and inspect numerous other things. Should the inspectors believe that any given software application is a counterfeit product, it is immediately confiscated along with the hardware, the relevant removal statement generally featuring the following words: “the unidentified CD-carried software application has been removed.” Notwithstanding the fact that the withdrawn software product could very well a legitimate item, under such circumstances it gets carried away anyway. July 3, 2001, a batch of policemen unexpectedly descended upon the editorial offices of the Kovrovskiye Vesti Daily (Kovrov, Vladimir region). As they displayed their prosecutor-signed search warrant to the daily’s editor-in-chief N. Frolov, the law enforcers ran a four-hour-long hunt for counterfeit products. Though N. Frolov tried to convince the detectives that he carried no counterfeit software applications banned for circulation in the Russian Federation and that the editors had exclusively used fully licensed products, the policemen persisted with their search effort. Following that “raid,” the local newspaper editors had seven PCs removed, which effectively disrupted the newspaper’s operation. Such “hunts” with subsequent “removal” of firmware discs holding confidential information also have been performed in Vladimir (on two occasions), Ivanovo, Yaroslavl, Saratov and Oryol. Interestingly enough, in none of the cases was any proof of the use counterfeit software applications presented. In 2001, the GDF monitors came to record a growing numbers of criminal cases opened against mass media workers, the disparate grounds for which ranging from corruption to extortion. To note, one such case was recently completed, the prosecution having lost. In January 2002, A. Postnov, Kazanbased correspondent for the Moscow-based Express-Khronika human rights newspaper, was apprehended on suspicion of his approaching Ya. Margoulis, managing director of the state-run unitary enterprise “Medical Supplies and Pharmaseuticals of Tatarstan” (“Tattekhmedfarm”), and a kickback in the amount of $1 000 was demanded. A. Postnov was found not guilty, the charges brought against him by the prosecution falling into pieces during the court proceedings. Notably, similar cases have come to pass elsewhere across the Russian Federation. On December 4, 2001, the prosecutors from the city of Murmansk had two chief editors from different local newspapers (V. Shkoda from the Komsomolskaya Pravda — Arktika newspaper, and Sh. Amrakhanov from the Severo-Zapad Daily) charged with extortion (Article 163 of the RF Criminal Code). The staff of the Komsomolskaya Pravda — Arktika firmly maintains that the move to detain Shkoda and Amrakhanov was a politically motivated action, the entire point of the staged affair being to intimidate the Murmansk mass media community. September 2001 saw the detention of A. Karasev, host of the “Regional Interest” program on the “TV-6 Tver” television network. In October of the same year Yu. Gorbanev, editor from the Nizhnii Novgorod-based Soldat Udachi newspaper, was taken into custody on a similar charge. The local courts have yet to pass judgment on these cases. 103 * * * To point out, Russian authorities have been attempting to put constraints on journalistic pursuits, particularly when it comes to coverage of highprofile matters such as operations run by special forces to release hostages, etc. Following a large number of people being taken hostage at the Moscow-based Dubrovka theater center (October 23—26, 2003), numerous glitches and miscalculations in the arrangement and execution of the hostage-release operation were revealed through the focused efforts undertaken by the media, who kept track of the situation’s developments on a continuous basis. This resulted in the authorities wanting to protect themselves against the risk of such exposure in the years ahead. Immediately following the terrorist action, the State Duma proposed a pro-government motion to appropriately amend the applicable counter-terrorism and mass media laws, the relevant changes primarily aimed at placing constraints on the freedom of speech under conditions in which counter-terrorist operations are being run. In particular, it was suggested that the counter-terror legislation be amended to include certain rules designed to expand the array of constraints to bar either the promotion or justification of terrorist or extremist actions in the mass media and other sources of information, including reports that “serve to bolster either the promotion or justification of extremist activities or carry some statements or pronouncements aimed to hamper the use of counter-terror operations, back up the propaganda and/or justification of actions to oppose the idea of counter-terrorist operations.” Clearly, the implications of such an amendment would be broader than they seem to be at first glance: it should be remembered that the ongoing war in Chechnya is officially viewed as a counter-terrorist operation pursued on the basis of relevant legislation. Should such an amendment be enacted, any attempt to launch and run a full-fledged public debate in the media on the Chechen issue would be unlawful for all practical purposes. Though the proposed amendment was rather speedily approved by the State Duma and the Federation Council, the RF President (apparently having come to the realization that the adopted legislation would look quite odious) responded to an outcry from the bigger media operators (government-run ones included) and turned down the amendments. Yet, it should be pointed out that the amendment has not been totally abandoned. The proposed alterations have been sent down to a conference commission, so at this point in time it appears to be rather difficult to conclude with any degree of certainty whether the amendment could be passed after all, or if it will continue to be a sword of Damocles for the Russian mass media. Anyway, the media executives promised the RF President that they would draft a set of self-regulation tools to appropriately govern the coverage of terrorist acts in progress. It should be emphasized that although we tend to back up the self-regulation initiatives emanating from the journalistic community, in this particular case the desired consensus from the media community was actually achieved through a sequence of blackmail moves. * * * Thus, the last three years have seen a global shift in policies and priorities maintained by Russian authorities with regard to shaping the local information arena and regulating mass media operations, the main trends running as follows: 104 1. 2. 3. 4. Maximized government influence on the media is pursued, and a variety of measures are introduced to oversee independent media activities, particularly national television networks. The more influential non-governmental media holdings and media operations are being phased out. Pursuant to the stated “administrative vertical” policy goal, efforts have been under way to organize regional media operators into media holdings reporting either directly to plenipotentiary presidential representatives in the federal administrative districts, or being variously supervised by local agents from the Presidential Administration. Of late, there has been a clearly defined trend reflective of the authorities’ desire to “compact” the current information arena in the Russian Federation by way of enabling the larger media holdings (that are manageable and loyal to the current executive power) to reach out into the provinces, leaving the less malleable local media operators to be incrementally eliminated. The Informational Security Doctrine is introduced as a guideline document designed to assure the subsequent alteration of the applicable media legislation, and as a sort of “testing ground” intended to prove the effectiveness of the measures to oversee the information flow in general, and media operations in particular. The Russian journalistic community is divided and scattered: a new double of the Russian Union of Journalists — “Media Soyuz” — has been established; 10% VAT for media activities has been introduced to enable the larger and prosperous media structures to reach into the provinces, thereby phasing out local media operators lacking the proper resources to effectively compete against national media companies; etc. ARTICLE 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law. The actions envisaged by Paragraph 1, Article 20 of ICCPR have not been registered recently, so it was not possible to test the actual efficiency of the corresponding bans contained in the RF Criminal Code. At the same time, racist propaganda in every form is still an extremely urgent problem in the Russian Federation. There are many publications and periodicals promoting ethnic and religious hostility. Many racist organizations are functioning in the country. The largest of them, Russian National Unity (RNE), broke up at the end of 2000, but its numerous fragments, which suffered considerable losses in their common membership, have become extremely active again in 2002. Also, new organizations of this sort are emerging. Race-motivated violence is an important problem. The number of violent acts on the part of the Cossack units has gone down recently. At the same time, the number of skinhead gangs is growing rapidly, and, correspondingly, so is the number of attacks on “visual minorities” (Caucasians, Central Asians, Roma, Africans). Attacks on Jews are not frequent, but attempts to destroy and defame synagogues and other Jewish buildings or cemeteries happen quite often. 105 According to the Ministry of Internal Affairs, there are about 15,000 skinheads in Russia,128 but, taking into consideration the conventional nature of these estimates, this seems to be the minimum number. During certain months of 2002, reports about grave skinhead attacks came in almost every day; by the end of 2003, the number of these reports had gone down somewhat. The formula of Paragraph 2, Article 20 of ICCPR does not have an exact analogy in Russian legislation. The RF Constitution bans “Propaganda or campaigning inciting social, racial, national, or religious hatred and strife” and “propaganda of social, racial, national, religious, or language superiority” (Paragraph 2, Article 29). It also puts a ban on the creation and activity of associations whose objectives and actions are aimed at “the incitement of social, racial, national and religious strife…” (Paragraph 5, Article 13). It seems that the constitutional ban has a wider formula, and is less operational than its ICCPR counterpart. With inconsiderable variations before 2002, the aforementioned constitutional formulas were also found in the laws “On Public Associations” (Article 16), “On the Freedom of Conscience and Religious Associations” (Article 14), “On Mass Media” (Article 4), and in all laws on elections. The violation of this ban could lead — after formal warnings — to the liquidation of an organization or to the closure of a media body. As far as journalists are concerned, Federal Law “On Mass Media” also introduced a ban on “distributing information aimed at slandering a citizen or separate categories of citizens for their race or nationality, their language, their attitude to religion” (Article 51). Federal Law “On Political Parties,” which was adopted later than other laws (in July 2001), envisaged additional restrictions: it banned the use of the name or of the symbol of a party “insulting race, national, and religious feelings” (Paragraph 5, Article 6 and Paragraph 3, Article 7, respectively). When Federal Law “On Countering Extremist Activity” was adopted in the summer 2002, amendments were made to the above mentioned laws, which substantially widened the formula of the ban. As a matter of fact, Article 1 of Federal Law “On Countering Extremist Activity” gives a very broad definition of “extremist activity.” It covers a number of actions ranging from terrorist activities to “humiliating ethnic dignity” and “promoting uniqueness, superiority, or deficiency of citizens on their attitude to religion, their social, race, ethnic, religious, and social affiliation.” Since Federal Law “On Countering Extremist Activity” has no limitations or more precise definitions concerning the seriousness of a criminal offense, most human rights activists and experts agree that the definition provided by said law gives excessively obscure formulas of the bans. As far as countering extremism is concerned, the new legislation does not distinguish between various forms of “extremist activity.” Thus, both obviously extremely dangerous actions and minor manifestations of intolerance (politically incorrect statements, publications, etc.) may result in grave persecution. Amendments to the laws “On Public Associations,” “On the Freedom of Conscience and Religious Associations,” “On Mass Media,” and “On Political Parties” have replaced bans of concrete content (see above) with a general ban on “extremist activity.” Thus, bans associated with Article 20 128 “Skinheads Have Adopted Accurate Hits Tactics,” Lenta.Ru (February 4, 2003). 106 of ICCPR now have much wider formulas in these laws than in ICCPR, making the enforcement of these laws more difficult.129 Since spring of 2002, constitutional bans have been more actively implemented by the authorities in respect to racist organizations and publications. During the first seven months of 2002, the newspapers Russkyi Khozyain, Russkiye Vedomosti, Limonka, which actively promoted racist views, were closed. A number of other periodicals received official warnings. Six regional branches of the Russian National Unity were liquidated.130 The fact that after July 30, 2002, i. e., after Federal Law “On Countering Extremist Activity” went into force, legislation became more severe, did not enhance the work against extremism, but rather vice versa. Since that time, only one liquidation of a Russian National Unity branch has been reported, and no racist periodicals have been closed since August 2002.131 The only notable step in this field was the RF Ministry of Justice’s deregistration of the new big, racist party, the National Imperial Party of Russia, which had been created and registered in September 2002. To note, the party’s registration was annulled under formal pretexts only due to powerful public pressure, and only in May of 2003. Measures of criminal persecution against especially dangerous racist propaganda are reflected not only in Article 282 of the RF Criminal Code (“Incitement to ethnic, or religious strife,” which mandates punishments ranging from a fine to five years of imprisonment) and Article 63.e, which establishes the racist motive as an aggravating circumstance. The racist motive serves as a qualifier in five articles of the Criminal Code (murder, intended infliction of grave or medium harm to health, torture, and defamation of tombs), but not in other violent crimes. It is usually believed that racially-motivated violence is only one of the dispositions of Article 282, and the formulation of it in the Criminal Code is not clear: according to Paragraph 2.a of Article 282, the threat of violence, or the use thereof, qualifies as racist propaganda, although this is seldom applied to racist attacks. In 2002, the enforcement of Article 282 was intensified: 71 cases were opened, 31 charges were brought, and 16 persons were convicted132 (to compare with 17, eight, and ten in 2000, respectively133). However, punishments were still too light (convictions were usually probational) and infrequent. This came not due to the deficiency of the Criminal Code formulas themselves, but rather due to the absence of official comments to help distinguish between criminal offenses and not so dangerous manifestations of intolerance, the absence of persistent motivation on the part of political leadership, and as a result of the widespread sympathy among law enforcement officers towards racists’ objectives or even means. We should 129 The most extensive and detailed criticism of new laws can be found in: A.Verkhovsky, Government Against Radical Nationalism. What Is to Be Done, and What Is Not to Be Done? (Moscow: Panorama, 2002); also see: L. Levinson, “Extremism Will Be Fought in Stalin’s Way.” Russian Bulletin on Human Rights ( #16, 2002). 130 Human Rights in Russian Regions —2002 (Moscow: Moscow Helsinki Group, 2003). 131 A more detailed review of the enforcement of new legislation in August 2002 — February 2003 can be found in: A. Verkhovsky, “Half a Year of Countering,” Russian Bulletin on Human Rights (#17, 2003). 132 “Skinheads Have Adopted Accurate Hits Tactics.” Lenta.Ru (February 4, 2003). 133 “On the Observance by the Russian Federation of CERD.” Alternative Report of Russian NGO (Moscow: 2002). 107 also note that Article 282 is almost always covered by amnesty, which saves most convicted racists from punishment. As concerns Article 63.e, cases where this norm was enforced are not known to us. Generally speaking, in almost all cases where violent crimes motivated by race are detected, law enforcement bodies either shun any proof that a racist motive is present, or simply fail to prove its presence. This even happened in November and December 2002 when judgment was passed regarding skinheads’ most infamous and cruel crimes involving murder — the riots at the Moscow Tsaritsyno market, and the murders of Roma people in Volgograd.134 As far as numerous attacks on representatives of “visual minorities” are concerned, top-ranking police officers claim, as a rule, that they do not see racist motivation in these attacks.135 And when a poster with the words “Death to Kikes!” was rigged with explosives not far from Moscow, and blew up on the side of the Kievskoe highway seriously injuring a woman (May 27, 2002), a top-ranking policeman said: It is a disputable thing whether setting up such poster is an offense. I believe that from the formal point of view the slogan “Death to Kikes!” does not constitute incitement to ethnic strife. Everybody can be called a Kike [the equivalent of this word is also used to denote a scrooge] here.136 In this last case, just as in the cases of most other violent racist crimes, the perpetrators were not found. Passivity on the part of the authorities in the face of clear-cut racist riots cannot but cause concern. Thus, on July 7, 2002, Armenians were attacked in Krasnoarmeysk, Moscow region. A few days later, local residents and visiting activists created a racist Movement Against Illegal Immigration, which is still active today. The participants of the attacks, whose names are known, have remained unpunished. Top officials rarely make openly racist statements, but such things do happen. While commenting on the severe local laws restricting migration into the territory, A.Tkachov, Governor of the Krasnodar territory, said: One can define whether the migrant is legal or not by his surname, or rather by its ending. Surnames ending with “yan,” “dze,” “shvili,” “ogly” [i. e., those of Armenians, Georgians, Azerbaijanis] are illegal, just as illegal are those who bear them.137 There is no systematic persecution of racist organizations. Measures such as the refusal to register an organization is a rare and not always efficient thing. The Federal Law “On Countering Extremist Activity” brought two new articles to the RF Criminal Code — Article 2821 (“Organization of an Extremist Community”) and Article 2822 (“Organization of the Activity of an Extremist Organization”) — which are aimed to facilitate the persecution of organized criminal, and in particular racist, activity. Yet, cases are not known when these grave articles, and Articles 210 (“Organization of a 134 Human Rights in Russian Regions — 2002 (Moscow: Moscow Helsinki Group, 2003). Information on the crimes of racists and the actions of the authorities in respect to them up to January 2003 had been collected by the “Panorama” Information and Research Center at http://panorama.ru/works/patr/govpol/. 136 “Russian Jews Demand that a Police Colonel Be Fired for Anti-Semitism,” Lenta.Ru (May 31, 2002). 137 I.Bederov, “Illegal Second Name,” Novaya Gazeta (July 11, 2002). 135 108 Criminal Community”) and 239 (“Organization of an Association Infringing upon the Integrity and Rights of Citizens”) of the RF Criminal Code, which had previously served the same purpose, were applied to racist organizations. ARTICLE 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (order public), the protection of public health or morals, or the protection of the rights and freedoms of others. The right of peaceful assembly is guaranteed by the RF Constitution (Article 31). The domestic legislation (the May 25, 1992 Presidential Decree “On the Procedures to Arrange and Conduct Rallies, Marches, Demonstrations and Picket Lines”) provides for notification-only process with regard to the organization of rallies and pickets. Any such event can be banned only if it runs counter to the RF Constitution or threatens public order and security of citizens. Also, any public event can be terminated whenever the relevant, agreed-upon procedures have been breached, hazards have emerged to endanger the life or heath of the people, or public order has been violated. Over the past few years, traditional places for rallies and routes for public marches have generally been finalized. Continuous monitoring of the situation with regard to the observance of the right to peaceful assembly in the Russian Federation has been indicative of the obvious fact that certain problems in this area are still quite relevant. Those arranging peaceful assemblies encounter obstacles when the scheduled action is particularly ill-favored by the authorities. In addition, whenever a public action banned by the authorities on ambiguous grounds proceeds to be staged anyway, the authorities would normally move in to detain the organizers and file administrative charges. It has been rather rare and far between that local law enforcers have resorted to coercive moves in regard to participants of unauthorized events. Authorization to stage a public event should come automatically whenever the arrangers have submitted their application in full conformity with the established requirements. However, the authorities at times refuse to give permission to mount a massive public event, or have the event terminated on some farfetched grounds. By way of example, on October 31, 2002, soon after the Dubrovka theater center hostage-taking tragedy (October 23—26), the Central Administrative District Prefecture in Moscow refused to grant permission to run a traditional picket line against the war in Chechnya, the event having been held in downtown Moscow (on Pushkin Square) every week since February 2000. To emphasize, no direct banning order was issued, because the relevant application had been filed in accordance with the established procedure. The picket line was terminated by the police, who descended upon the protesters and had them delivered to the nearest police station, where administrative offense charges were filed and brought to the attention of the detained persons. 109 Within a week of that development (November 7, 2002), the authorities actually made an attempt to do the same thing again. However, the presence of highly-visible human rights activists among the picketers compelled the police to conclude that, inasmuch as no specific ban pertaining to that particular event had been issued, the picketers were not violating any law. Since then, the no-war-in-Chechnya pickets have been conducted without police interference. In July 2002, the Oryol administration banned a massive rally prepared by the public association “Environmental Security Movement of Central Russia” to protest the construction of a “Northern Oil” refinery in the town of Zalegoshch, Oryol region. Notably, the banning directive was motivated as follows: firstly, the “refinery-origin environmental security hazard” was denied outright; secondly, the scheduled rally “would not help promote the policies pursued by the Oryol Governor [E. Stroev] to assure prosperity and stability in the Oryol land;” and thirdly, the square in front of the regional administration building (where the rally was supposed to be staged) was undergoing repairs.138 Also, while refraining from directly banning public action, the authorities have sought to place constraints on the form of these events. Thus, the march, which was to follow the no-war-in-Chechnya rally on January 12, 2003, was prevented from taking place. Though the march was mentioned in the relevant application for the desired public event, the subsequent permission was granted only for the rally itself. Despite the fact that no explicit ban was issued for the march in question, the police threatened to make arrests should the rally participants proceed to carry on with the intended march. Peaceful assembly participants have been detained by law enforcement officers and charged with committing administrative offenses whenever the originally stated topic of a scheduled, peaceful event was changed. For example, in February 2003 in Ekaterinburg (Sverdlovsk region), the participants of a protest action “against judges violating the law,” which was staged in full compliance with the applicable procedure, were charged with committing an administrative offense in the form of changing the stated action’s topic by means of “spreading slanderous leaflets against individual judges.” Regional and local authorities have been releasing regulatory documents designed to place unlawful constraints on the freedom of peaceful assembly. Admittedly, in a number of cases human rights activists managed to succeed in getting these arbitrary directives rescinded. For example, human rights activists in Khabarovsk succeeded — even if after several years of dedicated struggle — in getting the annulment of Ruling #419 by V. Ishaev, Governor of the Khabarovsk territory, dated October 29, 1998. Ruling #149 was aimed at banning “politically-charged events” (public protest actions, rallies, pickets, etc.) on Lenin Square in Khabarovsk “on account of the square being put into service following repairs.” It was only on January 12, 2002, that the RF Supreme Court pronounced Ruling #419 unlawful. 138 See the response of the Oryol administration in the archives of the Movement for Human Rights. 110 * * * Hence, citizens of the Russian Federation generally enjoy opportunities to implement their right to peaceful assembly, though now and again they continue to be confronted by unlawful constraints in this respect. While interpreting possible hazards to public order and security in an arbitrary and overly broad manner, the Russian authorities seek to convert the notification-only procedure for the conduction of public events into an authorization-based procedure, thereby securing the power to rule out undesirable public actions. ARTICLE 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this article shall authorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. Situation of NGOs Currently, about 170 000 non-governmental organizations (NGOs) are registered in Russia. Up to two million people participate in their work, providing services to some 20 million people annually. However, the mission of NGOs to provide social services and assistance to vulnerable groups, to represent and defend the interests and rights of their constituencies, and to conduct other charitable activities is seriously hindered in contemporary Russia. As documented in numerous reports by Russian NGOs, including the 2002 Report to the Special Representative of the UN Secretary General on the Situation of Human Rights Defenders, implementation of the right for freedom of association and the situation of NGOs in Russia have considerably worsened during the last three years. On the federal level, their activity is hampered by the adoption in 2000—2002 of new repressive legislation affecting NGOs. In particular this legislation negatively affects NGO’s as regards taxation, the participation of NGOs in court proceedings, and countering extremist activities. On the local and regional level, harassment of and pressure on human rights and other types of NGOs are perpetrated by public authorities. The Factor of Legislation The right for freedom of association is guaranteed by Article 30 of the RF Constitution. Legislative framework of this right’s implementation and regulation of activities of NGOs are enshrined in federal laws adopted in the mid-1990s: the 1995 Federal Law “On Public Associations,” the 1995 Federal Law “On Charitable Activities and Charitable Organizations,” and 111 the 1996 Federal Law “On Non-Profit Organizations,” as well as in the RF Civil Code of 1995. While this legislation provides strong general guarantees for freedom of association, there are certain provisions there that seriously limit the activities of NGOs. Federal Law “On Charitable Activities” includes a limited list of areas of activities that are considered charitable in purpose; human rights work and civil society development are not part of that list. Article 582 of the RF Civil Code allows only certain types of NGOs to receive tax-exempt donations; several of the most wide-spread types of NGOs are prohibited from receiving donations, and are thus placed in an unequal legal position in comparison with other types of non-profit structures. In 2000—2002, a number of new federal laws were adopted effecting NGOs. In 2001, the new Criminal Procedure Code and the new Civil Procedure Code, which effectively deprive NGOs of the possibility to represent individuals in judicial proceedings, were a significant step back as compared to previous legislation. In 2000—2002, the State Duma adopted a new Tax Code which threatens the very existence of NGOs, by establishing a taxation regime for them that is similar to that of commercial companies. This includes a 20% VAT on free services provided by NGOs, and a restrictive definition of a grant, in accordance to which grants supporting many types of NGO activity, including human rights work, social assistance, civil society development, etc. no longer enjoy tax breaks: the NGO-recipient of the grant is required to pay a profit tax of 30%. The new Federal Law “On Foreign Technical and Humanitarian Aid” adopted in 2000 became another barrier for the work of NGOs by establishing a complex centralized bureaucratic procedure of registration of programmes supported by funds from foreign governments and international organizations for the purposes of obtaining tax breaks. The law requires approval of such programmes by respective regional authorities, and their agreement to control the expenditure of the aid funds. The new Federal Law “On Countering Extremist Activities” adopted in July 2002, and the consecutive related changes to Federal Law “On Public Associations” give the state excessive powers by enabling it to extrajudicially suspend activities of any NGO that is, for example, allegedly engaged “in planning preparation or execution of activity undermining the security of the Russian Federation,” as specified in a very broad definition of extremist activity in Article 1 of the new law. Pressure against NGOs The principal methods of pressure against NGOs are denial of registration, prosecution, detention, and abuse by police, etc. Registration During the mandatory official re-registration of membership-type NGOs in 1999, local departments of the Ministry of Justice arbitrarily refused to renew registration of a large number of NGOs for illegitimate reasons or on the basis of formal pretexts. There are sufficient reasons to believe that regional and local authorities used the renewal of registration procedure as an opportunity to eliminate the organizations they did not feel comfortable 112 with. This practice primarily affected human rights and environmental groups. Many denials of registration were accompanied by illegitimate demands to remove the words “human rights protection” from the names and statutes of NGOs. This demand was imposed on many well-known groups, such as “Environment and Human Rights” Coalition, “Memorial” Human Rights Centre, Glasnost Defence Foundation, Moscow Human Rights Research Centre, Center for Assistance to International Protection, Soldiers’ Mothers of Russia Movement, and others. Authorities justified their illegal requirement to remove the words “human rights protection” from organizations’ names and statutes claiming that according to the RF Constitution, human rights protection is the state’s obligation, therefore NGOs are not authorized to protect human rights on their own, and may only “assist” the state and professional lawyers in their work for human rights. All-together, dozens of organizations were forced to shut down and stop their activities. As a result, only 5% of membership-type NGOs survived in the Tambov region, 12% in Moscow, and 20% in the Krasnodar territory. Overall, since 1999, regional departments of justice responsible for the renewal of registration have filed to over 1,300 suits on the liquidation of non-government associations to courts. Authorities in several Russian regions, in particular the Krasnodar territory, often refused registration of new organizations in 2002—2003 on formal pretexts, and put forth endless arbitrary demands to change groups’ charters and other incorporation documents. Persecution and Harassment of NGOs Regional authorities subject human rights and other NGOs to various forms of pressure, up to paralyzing their work by performing repeated checks on their activities, financial and otherwise, evicting them from their office space, by spreading defaming information, etc. The situation is particularly alarming in two regions in the South: Krasnodar and Chechnya. The government of the Krasnodar territory, which is notorious for numerous human rights violations, including those in the field of racial discrimination and the establishment of effective control over regional mass media and courts, regularly repress the human rights of NGOs, including those that monitor and report on the local human rights situation. In the Chechen Republic, those who work in NGOs are at great risk; the illegal detainment of NGO activists by federal troops, their arrests, placement in filtration camps, beating, denial of medical assistance, searches of offices, the confiscation of NGOs’ property and documentation, etc. are virtually paralyzing very important activities of independent non-governmental organizations in this region, which sees the most acute abuses of human rights in Russia. Criminal Prosecution NGO activists often become a target of persecution through the opening of criminal cases against them, by being convicted of criminal offences, by being declared insane, through subjection to forced psychiatric examination, forced placement in a psychiatric hospital, by being threatened with physical violence, by being detained and beaten by police, etc. Quite a di113 rect connection can often be observed between critical statements made by human rights defenders against the authorities, including accusations of corruption, and the following actions against activists; often, public officials openly underline this connection. Cases of physical violence against human rights defenders, including murder, are not properly investigated by authorities, and the perpetrators are usually not found. More than 20 criminal suits have been lodged against NGO activists over the last three years, with quite a large share of them resulting in conviction. Examples include criminal prosecution against human rights defenders G. Dundina and R. Gabidulin in the Arkhangelsk region in 1999, I. Fedotov, head of “Phoenix” NGO helping migrants and refugees in the Novgorod region in 2000, A. Konovalov, a member of the “Car Enthusiasts Society” in the Perm region in 1999, environmental activist and lawyer M. Konstantinidi in the Novorossiisk region in 2002, and the young advocate for the repeal of army conscription and against the war in Chechnya D. Neverovsky from Obninsk in the Kaluga region in 2001, etc. Arrests and Beatings by Police and FSB. Physical Abuse In 2001—2002, on many occasions police officers arrested and used violence against anti-war activists from the Ekaterinburg Society Against Violence (G. Edelev and others), environmental movement “Guardians of the Rainbow,” and against activists from the anti-nuclear campaign in Ekaterinburg (Sverdlovsk region) and in the Republic of Udmurtia. Forced Psychiatric Tests and Treatment The chairman of the southern regional branch of Chuvashian Association of Victims of Political Repression, N. Shemyakin, was subjected to forced hospitalisation in a psychiatric clinic in 1999 after challenging the management of the Kanashsky railway-carriage repair works, accusing them of dishonest dealings and fraud. In 2000, human rights defender Victor Prudnikov from Tyumen was forcefully hospitalised for a forensic psychiatric examination, spending nineteen days in a psychiatric hospital. In December 1999, A. Bugayenko, leader of the “Narodny Front” NGO from Nerungry was forcefully hospitalized in a psychiatric hospital by a court decision for what the court described as “inadequate behaviour characterized by obsessive litigation, paranoid ideas, and fighting for false justice.” He was kept in a psychiatric hospital and subjected to forceful treatment for four and half months between December 1999 and May 2000. Other Facts There are other facts of intimidation and threats by authorities against NGOs. In February 2002, Military Commander Major-General Volkov in Nizhnii Novgorod threatened V. Gursky, leader of a local Peacemaking Group, with physical violence. The threats were caused by V. Gursky’s advocacy of alternative civil service for conscientious objectors. Ungrounded public accusations and negative comments made by authorities about human rights NGOs are very common. V. Kartashkin, then Chairman of Human Rights Commission under the RF President, while speaking at a press-conference in June 2001, accused one of the most widely respected human rights organizations, the “Memorial” Society, of anti-state activities. 114 Also common are unlawful penalties and fines, discrediting reports about NGO activists sent to their employers, eviction of NGOs from their office spaces. For example, a well-known Moscow-based human rights NGO, “For Civil Rights” Committee, was evicted from its office space in March 2002. In 1998, the same happened with the Nizhnii Novgorod branch of “Mother’s Right” Foundation. Situation of NGOs in the Krasnodar Territory NGOs in the Krasnodar territory come under most severe pressure and harassment by authorities and law enforcement. As prosecution against human rights defenders is commonly based on invented and false pretexts, cases are closed and reopened, sometimes for years on end . When NGO activists demand that the rights of the victims of human rights violations be protected and obvious crimes committed by law enforcement officers be investigated, “extreme” measures are used against them. A member of the Human Rights Association of the Krasnodar Territory, S. Ushakov, was robbed (several thousand US dollars were taken) and injured by FSB agents. The perpetrators were not punished, although repeated complaints were filed with the then-Prosecutor General Skuratov. In December 1998, S. Ushakov was shot by a hired assassin; the murder was witnessed by his wife and a few dozen other people. The murder case was later closed by the local prosecutor. Over more than two years between 1997 and 1999, law enforcement agencies in the Krasnodar territory kept in detention, without a court warrant, local human rights defender V. Chaikin, who suffered from a compression fracture of the spine, heart disease, and high blood pressure. In October 1999, Chaikin was convicted by court and sentenced to two years and four days of imprisonment. In 1998, an assassination attempt was made against V. Rakovich, Chairman of the Krasnodar Human Rights Center, editor-in-chief of Human Rights in the Krasnodar Territory newsletter, regional human rights monitor of the Moscow Helsinki Group, and a member of Amnesty International. In the course of V. Chaikin’s trial, in which Rakovich acted as public (lay) defender, during a break, a group of individuals attacked Rakovich and beat him saying, “Now we are going to kill you in revenge for our brother Tsaturian” (Tsaturian was the name of the investigator in charge of Chaikin’s case). As a result of the traumas suffered, Rakovich was hospitalised for more than two months. Law enforcement officers avoided recording the crime for almost six months, and the criminal case was later closed by prosecution. In 1999, Rakovich was unlawfully arrested for five days. While he was kept in an underground cell by the Leningrad regional police department, they had to call an ambulance five times to give him emergency medical assistance. After three days, the police took their near-dying prisoner to the hospital. Rakovich’s health is permanently damaged because of the incident. In May 2002, the Krasnodar Human Rights Center, after repeated pressure from authorities, was informed that the Territorial Department of Justice asked the court to suspend the Center’s activity for three years. Russian laws do not provide for such a long period of suspension. Regional authorities are uncomfortable with the Center, first and foremost, because the organization publishes an annual human rights report containing objective 115 criticism of the Krasnodar administration and law enforcement agencies. In October 2002, the Justice Department issued an order suspending the activities the Krasnodar Human Rights Center for six months, using the new powers, provided by Federal Law “On Countering Extremist Activities,” to suspend an NGO’s work without a court decision, and at the same time withdrew the earlier request to the court. The reasons for suspension were the same as in the court claim. In 2001, another NGO, “Mothers Advocating for the Rights of Detainees, Defendants, and Convicts,” publicized facts of torture and inhuman punishment practiced by enforcement officers in the Krasnodar territory against people in custody. Shortly after the publication, the NGO was evicted from their office space allegedly for “a breach of regulations.” While T. Rudakova, leader of the group, was away on a business trip, all documents collected by the NGO (complaints, statements, testimonies) were dumped outside the building (among these documents, there were numerous letters by convicts and detainees alleging torture and inhuman treatment). In August 2002, “Vatan” International Society of Meskhetian Turks, registered in the town of Abinsk, was closed by a local court in response to the Territorial Department of Justice’s claim of “non-compliance with its statute in the part concerning the repatriation of Meskhetian Turks to Georgia.” The suit came after the Society’s leader, S. Tedorov, sent a letter to the RF President asking him to take urgent measures to put an end to the increasing ethnic discrimination of the Meskhetian Turks in the Krasnodar territory, and to stop the plans of forceful deportation of this ethnic minority. Two Novorossiysk-based organizations, the Human Rights Committee and the “School of Peace” Foundation, were among those that publicized the hunger strike stged by Meskhetian Turks in the village of Kiyevskoye in Krasnodar territory. The hunger strike started on June 22, 2002. On June 25, representatives of the organizations were invited to Krasnodar by the head of the international relations department of the Krasnodar territory administration for a meeting concerning the hunger strike. They were informed at the meeting that as soon as Federal Law “On Countering Extremist Activity” was adopted, it would be used against those who disagree with the policy of the Krasnodar Governor, Tkachov, and that if the human rights defenders in Novorossiysk agree to pressure the international community into urging Georgia to accept the Meskhetian Turks into its territory, then the territory’s government would grant any kind of support to the said NGOs. Pressure, intimidation, and harassment are used, as a rule, against NGOs if they voice their concerns about the human rights situation in the region, and their criticism of the regional government’s actions is conducted via the following methods: the dissemination of their materials, informing the public and mass media of human rights problems, giving recommendations to the authorities with regard to the improvement of the human rights situation, by urging the federal government to take appropriate measures to ensure that the territorial governments observe the RF Constitution, federal laws, international human rights obligations, etc. The practice of pressure and persecution of organizations and activists is inspired and enforced, as a rule, by local and regional authorities. Federal 116 authorities, however, do not adequately react to this practice, despite numerous appeals by NGOs and publications in the media. This inaction can be qualified as tacit support; local authorities often interpret the federal government’s lack of critical reaction as encouragement of the practice of persecution and pressure against NGOs. Situation of Trade Unions The Factor of Legislation Prior to 2002, the legal status of Russian trade unions had been underpinned by the following two statutes: Federal Law “On Trade Unions, Their Rights and Commitment Guaranties” (“On Unions”) and the Code of Laws on Labor. February 1, 2002 saw the enactment of the RF Labor Code which notably limited trade union rights. Although the aforementioned Federal Law “On Trade Unions” has not been either revoked or updated in any way, it has largely become ineffective, since in a number of aspects it actually contradicts the provisions of the newly adopted Labor Code. The following are the areas where the status of Russian trade unions has deteriorated: The Right to Represent the Interests of Employees On the level of individual organizations, the right to represent the interests of employees is only enjoyed by unions established as primary trade union organizations (only primary union organizations are able to participate in either labor-management negotiation agreements or in resolving industrial labor disputes). For all practical purposes, this particular rule results in discrimination against unions that are not integrated in any trade union association, or that maintain no primary union organizations, not to mention the extra challenges of negotiating labor-management contracts. Given the risks, many trade unions have been compelled to reconsider their organizational structure. The problem is that demands from unions unwilling to restructure themselves have often been ignored by employers. Concluding Labor Agreements The RF Labor Code carries an explicit description of organizational levels cleared to negotiate collective agreements, which actually rules out any possibility to conclude collective professional agreements. Also, the RF Labor Code decrees that collective agreements can only be done with employer associations (other representatives of employers are denied this possibility). Since most Russian regions and industrial sectors have yet to develop such associations, functional trade unions have no party with which to negotiate an agreement. Conducting Negotiations and Concluding Collective Labor Contract The RF Labor Code provides for the negotiation of a single labor contract which is applicable to any and all employees, without professional distinction. The problem is that, for example, professional unions of air controllers, airliner pilots, and others now have no right to conclude a collective labor-management contract to take good care of their concerns. The guide117 lines for shaping a single representative body (formed in proportion to the total of union members, with a primary union organization being at least represented by one agent) had been drafted in such a manner that voices from small-sized professional unions have nearly been negligible. Resolving Labor Disputes and Calling a Strike Under the RF Labor Code provisions, Russian unions have actually been denied the right to strike (the old legislation provided for that right): a trade union has no right to call a strike; motions with regard to coming forth with demands on a collective labor dispute or calling a strike must be confirmed by the majority (in some cases, by the qualified majority) of employees of the organizations. A strike is acknowledged exclusively as a way to resolve collective labor disputes, all other objectives are ruled out. Participating in Regulating Labor Conditions and Ruling on Redundancies The RF Labor Code only provides for pro-forma union participation when ruling on redundancies or firing an employee. Trade unions are no longer able to participate in the definition of labor conditions where the employer drafts and introduces local regulatory measures. The legally-prescribed rule to account for the union’s concerns (particularly given the intricate sequence of steps to be completed in the process) has in no way limited the employer’s powers to define labor conditions at his own discretion. Notably, it is only all-Russian (sometimes inter-regional) union associations that have the right to set up dedicated union inspection teams to oversee the implementation of labor legislation. Maintaining Safeguards Related to Labor Activities While in the past members of the elected union bodies would enjoy ironclad safeguards against being disciplined or made redundant, today those officials (the list is now limited to elected heads and deputy heads of union governing bodies) can only enjoy guarantees against being fired on three sets of grounds. The rest of regular union activists do not enjoy safeguards on that score. Overall, the current government policy course has been directed towards supporting the larger and more stable union organizations. When compared with the previous period, the role of trade unions has now dramatically decreased. Although it has been declared that unions have priority in regulating labor-management relations, the reality has been the opposite. We are aware of a number of court rulings under which the collective labor contracts have been invalidated in their part regarding the improvement of the employeers’ situation beyond relevant provisions of the Labor Code. Notably, this transpires amidst an environment in which the generally proclaimed policy is that collective labor contracts and agreements should be made in order to create labor conditions at par with the standards prescribed by law, with any further improvements in the workplace only being welcome. Persecuting Union Activists and Exercising Pressure on Trade Unions Unions have often been denied registration, although under Federal Law “On Trade Unions” the registration requirement primarily serves the function of notifying the authorities. No justice body is authorized to deny reg118 istration to a trade union. Fortunately, the courts have often honored the appeals against union registration denials. Particularly common have been cases of union activists being persecuted by employers, while relevant power agencies remained indifferent to those developments. Just as a union, whether posing as an independent organization or as part of a trade union association (such as FNPR, Sotsprof, etc.), begins to firmly stand up for the rights of its members and against the labor policies of the employer, its leaders and regular members soon become targets for disparate pressure from the management. Tactics include direct layoffs (for allegedly breaching the office rules or works requirements), threats and pressure directed at targeted persons and their family members (a railroad depot master, for example, organized a meeting with all spouses of the employed engine car drivers and suggested that their families would really struggle to survive unless their husbands chose to leave the union), all the way to promises of career improvement or wage raises on the condition that the targeted activists leave the local trade union. Sometimes, the employers would resort to reshaping their businesses, creating new structures and doing other organizational changes in order to get rid of the in-house union. Now and again, one can see bonus money paid to have the local union phased out. There have been numerous examples to that effect all across the Russian Federation. It appears to be nearly impossible to prove in a court of law that union members have been discriminated against. Furthermore, Russian judges generally avoid using the term “discrimination” in any of their remarks or conclusions. Out of a very large number of suits, there have only been two cases when this kind of discrimination was confirmed by a court of law. Government interference in the affairs of Russian trade unions has been less visible than intrusions on the part of employers. Nevertheless, such cases have also been recorded. Larger employers (state-run unitary enterprises and others) have been pushing prosecutors to put pressure on local unions (the prosecutors would normally bring suits to have a union activity or industrial action deemed as unlawful, get the given standing statute invalidated as contrary to law, etc.). Sometimes, even the official labor inspectors, government agencies, and departments come to interfere in the affairs of sector trade unions. For example, at the end of April 2003, the Federal Air Transportation Service (FSVT) made another attempt to evict the Federal Union of Air Controllers from their legitimate premises in the FSVT building by way of increasing the rent and maintenance charges. ARTICLE 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. According to Paragraph 1, Article 38 of the RF Constitution, the family is under protection of the state. Indeed, in Russia the family has been traditionally regarded as an object of protection on the part of the state and society. This is primarily due to the fact that the family acts as the milieu which shapes a human being. In connection with this, measures aimed to support problem families with children (including social support measures) also constitute the protection of the family by the state. It must be pointed out that no mechanisms have been developed in the Russian Federation for 119 the protection of the child in a family where the child’s rights are violated by adults. Although the law establishes the child’s right to apply to a court if his/her rights are violated by the parents, the actual possibility (mechanism) for the child to apply for legal aid is not provided for. Federal Law “On the Advocate Activity and the Bar in the Russian Federation” adopted on May 31, 2002, speaks about the free provision of legal aid only to one narrow category of adolescents, i. e., adolescents kept in institutions of the delinquency-prevention system. All other children who remain outside such institutions cannot get free legal aid. The present-day Russian legislation in the field of family protection is characterized by the following main drawbacks: absence of clear-cut division of the authority between the federal center and the subjects of the Russian Federation in inter-budget relations and the competence of the federal and regional administrative structures with regard to the financing of the expenditures on children, protection of children, payment of state allowances for them, etc.139 During the past decade, arrears on the payment of monthly and other children’s allowances formed all the time, and the financing of expenditures on the implementation of the federal target programs for the social support of the family, including the presidential program “Children of Russia,” was repeatedly delayed and its volume reduced. The expenditures of the “social” lines of the federal budget and regional budgets were repeatedly cut. Certain improvement in the economic situation of the country in 2000 made it possible to markedly reduce the arrears on the payment of monthly children’s allowances and other social allowances, and to ensure the full financing of the program “Children of Russia” for 2000.140 However, according to information from another official source, in spite of the positive trends reported in some subjects of the Russian Federation, in 2000 there were arrears on children’s allowances in 71 regions, and in 24 of these regions the arrears even grew larger.141 The presentation of different statistical data by different governmental agencies graphically testifies to the lack of cooperation and coordination between these agencies. This inevitably affects the degree to which a child in a family can be protected. Social allowances established by law for children and families with children are insufficient for the adequate maintenance and raising of children in a family. The State Report “On the Situation of Children in the Russian Federation” for the year 2001 notes that the proportion of families with adolescents and an average per capita income below the subsistence level is so large that such families still form the majority of the poor population.142 Therefore, the measures taken by the state cannot be considered sufficient for rectifying the situation in the field of the protection of the family. In raising the issues of social protection, the Fifth Periodical Report of the Russian Federation cites as an example Federal Law #159 of December 21, 1996, “On the Additional Guarantees for the Social Protection of Children139 G. Klimantova, T. Fedotovskaya, “Healthy Family — Healthy Generation,” Analytical Bulletin of the Federation Council of the Russian Federation Federal Assembly (#13, 2001, p. 36). 140 Ibid. 141 “On the Situation of Children in the Russian Federation,” 2001 State Report (Moscow: REATE, 2001, p. 11). 142 “On the Situation of Children in the Russian Federation,” 2002 State Report (Moscow: REATE, 2002, p. 6). 120 Orphans and Children Left without Parental Care.”143 This law establishes additional guarantees for the given category of children to assure their right to education, medical service, property, dwelling, and work. It must be noted that this law establishes only the general responsibility for noncompliance with the law and violations of the rights of the child laid down thereby, which goes outside the framework of the family law. The formulation of Article 11 of the law, which contains this provision, is rather vague and does not mention any sanctions. Moreover, it does not say how offenders are to be held responsibile, thus allowing the person guilty of the violation of the child’s rights to avoid punishment. Attention must be paid to the fact that in its recommendations to the Russian Federation the UN Committee on the Rights of the Child mentions reports about the on-going practice of local authorities in some subjects of the Russian Federation which deny parents and their children access to medical, educational, and other services, because of the absence of registration at the place of residence, even though such restrictions are unlawful.144 Despite numerous complaints by individuals and organizations against the actions of local authorities submitted to federal authorities, no effective measures to rectify the existing situation have been taken. Thus, in violation of the law, the authorities of the Krasnodar territory do not recognize Meskhetian Turks as Russian Federation citizens, and treat them as illegal migrants, aliens who temporarily reside in the territory. This manifests itself, among other things, in the response of V. Rybin, head of the city of Krymsk and the Krymsk district of the Krasnodar territory, to a statement of a group of Meskhetian Turks who applied for assistance in the restoration of their houses destroyed by a flood in 2002. In his letter #1411, dated September 9, 2002, V. Rybin states that the applicants are stateless persons, and, therefore, their houses cannot be included on the list of houses to be restored. Moreover, asserting that social guarantees do not apply to the migrants and their children, he suggested that the Krasnodar Governor expel them beyond the boundaries of the territory. * * * 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. Most of the well known cases of the violation of the right to marry and found a family involve national minorities, including Meskhetian Turks residing in the Krasnodar territory. They are denied registration of marriages, and the children born to such families are officially regarded as children born out of wedlock.145 The position of this group of the population is described in more detail in the section on Articles 24 of ICCPR in this report. 143 “Code of Laws of the Russian Federation,” #52. Item 5880 “Report of the UN Committee on the Rights of the Child,” UN General Assembly Official Records. Fifty fifth session. Supplement #41 (A/55/41, p.176). 145 Report by the “School of Peace” Foundation, “Discrimination against the Children of Meskhetian Turks in the Krasnodar Territory Supported by the Russian Federation” (Moscow, March 2003, p. 9). 144 121 ARTICLE 24 1. Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State. In recent years, legal regulation of the position of minors in the Russian Federation, and of the bodies authorized by the state to protect them, has become even more detailed (Fifth Periodical Report of the Russian Federation notes that more than 200 regulations have been adopted in the past decade, which concern the rights of the child, including such rights in a family). Yet, the situation in the field of minors exercising their rights has not improved. Although, according to the RF Family Code (Article 56), children have the right to apply to court on their own from the age of 14 years, the law does not establish a mechanism for children’s application to administrative and judicial bodies. Meanwhile, the absence of such a mechanism hampers the realization and protection of the rights of minors if they have no lawful representatives (parents, foster parents, guardians and trustees), or in the event of a conflict with them. Although the right of the child to express his/her opinion is laid down by Article 57 of the RF Family Code,146 practical experience often shows that the guardianship, wardship and trusteeship bodies, as well as courts, refuse to consider the opinion of the child by referring to his/her suggestibility. Decision #10 of the Plenum of the Supreme Court of May 27, 1998, “On Application by Courts of the Laws When Resolving Disputes Connected with the Bringing-Up of Children,”147 which clarifies this legal provision, has not produced any effect on the practical application of the law. Thus, real conditions for the exercise of this right are yet non-existent, because the current civil-procedural legislation does not define the status of an adolescent participant of civil proceedings who lost parental care or tries to protect his/her rights. As to the administrative protection of a child’s rights, the Russian Federation has a system of state bodies charged with the protection of the rights of minors, which, however, are characterized by the absence of cooperation and coordination among them. The main authority which provides protection of the rights of the child are the guardianship and wardship (trusteeship) boards, which function within the local self-government bodies. Organization of the work of bodies of local self-government is determined by the charters of municipalities in accordance with the laws of the subjects of the Russian Federation, some of which have laws regulating the organization of guardianship and wardship work. As of the beginning of 2001, such laws have been adopted in only 60 subjects of the Russian Federation.148 146 According to Article 57 of the RF Family Code, when a child attains to the age of 10 year his/her opinion must be taken into consideration when any matters affecting his/her interests are decided, unless this goes against his/her best interests. 147 Bulletin of the Supreme Court of the Russian Federation (#7, 1998). 148 E. Chepurnykh, E. Bukhman, I. Volodina, et al., New Model of Organization of Local SelfGovernment Bodies in Charge of Guardianship and Wardship of Children: Model of Educational Institution of a New Type for Orphans and Children Left Without Parental Care (St. Petersburg: Obrazovanije i Kultura, 2001, p. 11). 122 Under Russian regional law, officials in charge of the protection of minors’ rights are appointed so that there should be one such official for every 5 000 minors.149 There is no doubt that one official is unable to pay adequate attention to all the children who need protection in a given territory. In addition to the already existing system of bodies for the protection of a child’s rights, there is also the Office of Ombudsman of the Russian Federation and Offices of Ombudsman for the Rights of the Child in several Russian Federation subjects. At present, the Office of Ombudsman for the Rights of the Child has been introduced in 15 regions of Russia, and the State Duma is contemplating the adoption of a bill entitled “On the Ombudsman for the Rights of the Child in the Russian Federation.” However, the adoption of this bill does not solve the tasks that have been set. Given the fact that so far the State Duma has not worked out and approved a national minimum standard of living for children, by which the Ombudsman would be guided in his work, and the Ombudsman’s competence is limited to making recommendations, the creation of this office cannot produce a significant effect on the assurance of a child’s rights. According to the Ombudsman for the Rights of the Child in Moscow, he has received 412 complaints over the course of one year.150 This number of applications is extremely small considering the number of violations of children’s rights which are committed every year as cited by official sources.151 A noteworthy fact is that in most cases it is parents that apply to the Ombudsman for help. This fact demonstrates the current ineffectiveness of this institution for children. The Moscow Ombudsman for the Rights of the Child does not even have an office to which a child could come.152 In the Fifth Periodical Report of the Russian Federation, the enactment of the 1999 Federal Law “On the Fundamentals of Child Neglect and Juvenile Delinquency Prevention System” is characterized as a step forward in the struggle against the homelessness of children. However, upon the elapse of three years after adoption of this law, the problem of homeless children remains one of the most serious problems of Russia. The authorities do not know the exact number of homeless children and cite different figures. Thus, V. Ozerov, Chairman of the National Security and Defense Committee of the Federation Council, has stated that, according to various estimates, at present there are anywhere from three to five million homeless children in Russia.153 According to the RF Minister of Education “now there 149 See, for instance, Article 7 of Law #16 of the City of Moscow of June 4, 1997, “On Organization of Guardianship, Wardship and Patronage Work in the City of Moscow” or Article 10 of Law #43-3 of the Nizhnii Novgorod region of September 10, 1996, “On Organization and Activity of Guardianship and Wardship Bodies.” Bulletin of the Legislative Assembly of Nizhnii Novgorod Region (#6, 1996). 150 “Children Have their Defender,” Tverskaya, 13 (April 1, 2003). 151 In 2001, 56,350 children were left without parental care because their parents were deprived of parental rights, 3,409 children were taken away from their parents without annulment of the parental rights and 65,535 minors fell victims to crimes. Bulletin of the Analytical Department of the Federation Council (#3 (196), 2003, pp. 120, 127). 152 “Official against Official,” Novaya Gazeta (#29, April 24 — 27, 2003). 153 M. Sergeev, “Struggle against Homelessness of Children.” Strana.Ru (January 14, 2002). 123 are from 100 000 to 500 000 homeless and neglected children.”154 However, independent experts speak of millions.155 At present, the struggle against the homelessness of children remains ineffective. Thus, in Irkutsk, the police conduct regular raids to round up homeless children, but do so for no purpose: eventually, they have to let the children go because there are no shelter, and these children do not want to go back home to their problem families or orphanages.156 One more serious problem is the failure to observe the rights of minors who have no Russian Federation citizenship. The position of this category of children has deteriorated since the adoption of the new Federal Law #62 of May 31, 2002, “On Citizenship of the Russian Federation,” which shall be discussed later within this section of the report when we touch upon the situation regarding the observance of Article 24.3 of ICCPR. Those children who are under the care of the state are in a difficult position. Such children are deprived of protection, because they are physically unable to appeal the actions of their tutors and to prove their guilt. Oftentimes, the children are not aware of the possibility to make complaints or do not know how to do this properly. In those cases where a complaint does reach a prosecutor’s office, the prosecutorial officials return the complaint to the same children’s institution to clarify the situation, after which, as a rule, the complainants are severely punished. Because of the lack of financing, many orphanages and other children’s institutions are in a deteriorating condition, with the risk-factor being quite great at times. In some cases, this has already led to tragic consequences. This is exemplified by recent fires in children’s institutions in various regions of Russia (five fires in the period from April to the beginning of May 2003),157 with 23 and 30 children respectively dying in two of such fires. * * * 2. Every child shall be registered immediately after birth and shall have a name. In accordance with Russian legislation (Federal Law “On the Acts of Civil Status”), a birth certificate must be issued for every child. At the issuance of a birth certificate, the birth of the child is officially registered with the indication of the first name, patronymic, and surname of the child and the child’s parents. Registration may be refused in the case of absence of a medical certificate evidencing the birth, or in a case where the person who wants the fact of the birth to be certified has no document certifying his/her identity. In the Krasnodar territory, refusal of registration of children whose parents do not have documents certifying their identity is common in respect of some ethnic minorities. Up to this day, the Meskhetian Turks who arrived in the Krasnodar territory in 1989—1990 are refused registration at their place of residence by the local authorities.158 Because of the absence 154 Ibid. O. Nesterova, “The Hardest of Misfortunes.” Trud (#37, January 16, 2002). 156 M. Noskovich, “Homeless Children Were Washed Specially for New Year Celebrations.” Izvestiya (#4, January 14, 2002). 157 In the Sakha Republic (Yakutia), Dagestan Republic, Buryat Republic, Moscow, Irkutsk region. 158 For more details, see the section on Article 26 of ICCPR in this report. 155 124 of registration, young people cannot receive passports upon coming of age. Turkish girls marry (the marriages are not registered) and bear children. However, if the mother does not have a passport, the local registries refuse to issue the child’s birth certificate. A similar situation is faced by the refugees who left the zone of military conflict in Abkhazia (Georgia) and came to the Krasnodar territory in 1992—1993. Without a birth certificate or a passport, the child is deprived of all state social guarantees of the exercise and protection of his/her rights (particularly, health, education, possibility to apply to a court of law, etc.). * * * 3. Every child has the right to acquire a nationality. Theoretically, the 1991 Federal Law “On Citizenship of the Russian Federation,” among other things, aimed to eliminate the statelessness of children. The law guaranteed Russian Federation citizenship to a child if one of its parents had Russian citizenship (Paragraphs 1, 2, Article 15). Russian citizenship was also to be granted to a child living within the territory of Russia if the child would become a stateless person otherwise. (Paragraph 2, Article 15). The 1991 Law “On Citizenship of the Russian Federation” remained in force for ten and a half years (from 1991 to 2002) — a period too short to make any conclusions about the practical application of this law. In particular, children born to persons who were denied registration at the place of residence from early 1989, and who were regarded by the Russian authorities as “illegal migrants” and stateless persons (such as the Meskhetian Turks in the Krasnodar territory), could not yet attain to the required administrative full age (14 years), and ran into problems regarding the recognition of their citizenship and the issuance of documents certifying their identity. However, in the 90s, the authorities of the Krasnodar territory repeatedly stated that they regarded all Meskhetian Turks without registration at their place of residence as stateless persons, including those born in the Russian Federation. Adoption of the new Federal Law “On Citizenship of the Russian Federation” in 2002 (hereinafter referred to as 2002 Citizenship Law), reduced the guarantees preventing the statelessness of children. According to the new law (Paragraph 3, Article 9), a child’s Russian Federation citizenship shall not be discontinued if the child will become a stateless person after such discontinuation. Under Article 12 of the 2002 Citizenship Law, a child acquires Russian Federation citizenship at birth if on the child’s day of birth: (a) both parents or the single parent of the child have (has) Russian Federation citizenship (regardless of where the child was born); (b) one of the child’s parents has Russian Federation citizenship and the other parent is a stateless person, is declared missing, or if his (her) whereabouts are not known (regardless of where the child was born); (c) one of the child’s parents has Russian Federation citizenship and the other parent is a foreign national, provided the child was born on the territory of the Russian Federation or would otherwise become a stateless person; 125 (d) both parents of the child who reside on the territory of the Russian Federation are foreign nationals or stateless persons, provided the child was born on the territory of the Russian Federation and the country from which the parents come does not grant its citizenship to the child. However, Article 3 of the 2002 Citizenship Law defines “residence” as “lawful residence of a person within or outside the territory of the Russian Federation,” which presupposes the presence of a permission for temporary residence or residence permits. The Russian Government regards a large part of the population of the country as “illegal residents,” a category which includes former Soviet citizens who legally entered the Russian Federation before entry into force of the 2002 Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” (November 1, 2002), and who live in the country without registration at the place of residence and do not meet the requirements of the said new law on foreign nationals. In accordance with the 2002 Citizenship Law it follows that the children of persons regarded as “illegally residing” stateless persons cannot be recognized as Russian Federation citizens, and have no other legal means of acquiring Russian citizenship. Under Paragraph 2, Article 14 of the 2002 Citizenship Law, a child who is a foreign national or a stateless person shall be granted Russian Federation citizenship in accordance with a simplified procedure (without meeting the requirements of legal residence, presence of a “legitimate” source of income, knowledge of the Russian language) only if one of the parents or the single parent of the child has Russian Federation citizenship. ARTICLE 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be conducted by secret ballot, guaranteeing the free expression of the will of the electors. The people of Russia is the source of her power, according to Article 3 of the RF Constitution. Election legislation is there to ensure the representation of people’s interests in state power bodies. The rights to express one’s electoral choice in a secret and free vote, and the guarantees of equality in realizing suffrage are fixed in the RF Constitution and a number of federal laws. The more important of those are “On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum,” “On Ensuring the Constitutional Rights of Citizens of the Russian Federation to Elect and be Elected to the Bodies of Local SelfGovernment,” and “On General Principals of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation.” In the recent years, starting with 1994, the election legislation is being frequently modified, with the law-making process becoming more intensive following periodic federal elections to legislative bodies. Thus, the fundamental Law “On Basic Guarantees of Electoral Rights…” initially adopted in 1994 after the election of deputies to the first State Duma of the Rus126 sian Federation in 1993, was revised in 1997, after the parliamentary election of 1995. Before the State Duma election in 1999 a specific federal law modified it even further, and in May 2002 a new edition of this law was adopted. The need for the latest edition of Law “On Basic Guarantees of Electoral Rights…” can be explained by the enactment of a new fundamental document, Law “On Political Parties” (2002), which was intended to introduce a proportional system of elected deputies to regional legislative bodies. Besides, the last parliamentary election in Russia revealed shortcomings in the existing legislation, which is significantly impaired as far as the realization of active and passive suffrage is concerned. The new edition of Law “On Basic Guarantees of Electoral Rights…” provides additional guarantees of the relevant rights, stipulates that a candidate can be de-registered only by a court of law, sets deadlines for application to court in connection with the annulment of a candidate’s registration and in connection with his/her involuntary withdrawal before the voting day, and establishes the procedure for setting election commissions at all levels. The drafters of the law believe that the latter innovation can essentially lessen the influence of regional and local authorities on the election process. In spite of the fact that election legislation is becoming more advanced and mature, election campaigns are rife with violations. The reason for this is the continued use of the so-called “administrative resource” or — as a lawyer would put it — “the abuse of office or public authority.” In order to attain the desired result in an election, the executive authorities in Russian regions pool both financial and ‘intangible’ resources (including the loyalty of law enforcement bodies, the mass media, election commissions, judiciary, etc.). Under such conditions, a competitive election often becomes impossible. For instance, the candidates running for governor of the Irkutsk region and their teams came under pressure from regional enforcement structures loyal to the actual governor, who himself was running for re-election. This situation was specifically addressed by the RF Ombudsman, and was subjected to slashing criticism by the Chair of the RF Central Election Commission. One of the basic principles, namely the equality of candidates, is being breached. The federal authorities are genuinely interested in a certain outcome in regional elections. Sometimes, they interfere with regional pre-election developments, subjecting the opposing candidates to high pressure. In such cases, the key roles can be played by the presidential plenipotentiaries in federal districts. For instance, during the 2002 election for the presidency of the Ingush Republic, the Office of the Plenipotentiary of the RF President in the Southern Federal District coordinated efforts with enforcement, judicial, and other structures in order to ensure the election of a candidate favored by the central authorities. Also, there are established facts of unlawful and gross interference in court procedures, when documents on the de-registration of a candidate were taken right out of the court’s retiring room. Generally, courts are frequently used by the executive branch to deregister an ill-favored candidate. To note, in many cases such annulment of registration occurs between just one and three days prior to voting. No pressure on a court is admissible, so actions like that constitute a direct 127 violation of Russian law and Russia’s international obligations in this field, including under ICCPR. The voters, who originally wanted to cast ballots for a de-registered candidate, have practically no time left to make a well thought-out choice. Moreover, the de-registered candidate has no time to appeal the court’s decision. A vivid example in this respect is the deregistration of V. Rutskoy (the then-governor of the Kursk region running for re-election in 2000) just one day before election day in the gubernatorial election. To note, the issuance of the court’s decision in writing was delayed by all possible means, thus preventing V. Rutskoy from appealing before the voting started. Election commissions are also subjected to pressure. In accordance with the previous edition of Law “On Basic Guarantees of Electoral Rights…” (its new edition is to be enforced country-wide starting June 14, 2003) election commissions were able to de-register a candidate and declare the voting results null, which made them one of most powerful tools with regard to manipulating elections’ results. For example, the election commission of the Krasnoyarsk territory annulled the election of a candidate — representative of the financial elite — who was opposing the regional executive elite in the given election. This caused a lasting conflict between candidates. Appeals were filed against the decision of the election commission in a local court, who disbanded the commission. Then, the federal authorities who previously abstained from openly meddling into the conflict, stepped in, and the RF Supreme Court overruled the lower instance court decision, putting an end to the argument. It seems that the RF President simply announced the name of the winner, although it still remained unclear who actually won the election, and what the real will of the people was. Putting pressure on candidates, courts, and election commissions during the registration period of candidates, primarily limits and violates the passive suffrage. At the same time, frequent violations of the campaigning regulations, legally dubious visual propaganda materials, and pressure on regional opposition media do not allow voters to get the necessary information about candidates. Due to such distortion of information, the expression of the electorate’s choice becomes fictitious. During the pre-election period, the authorities running for re-election often attempt to limit the campaigning possibilities of the opposition, manipulating with local mass-media. For instance, in the Primorsky territory a local newspaper Chestnoye Slovo could not sell one its periodic issues, since the main regional distributors refused to accept it for circulation without specifying the reason, putting themselves in violation of their contract with the newspaper. Local authorities often step up their anti-media activities as the election period is drawing near. For example, the legislature in the Kirov region thus banned the video coverage of its sessions, infringing the principle of free dissemination of information. As the local lawmakers said, this measure was taken to prevent the dissemination of “non-constructive information” about the deputies, many of whom registered for re-election. Searches at editorial offices, confiscation of papers, seizure of publications; these are the means practiced during regional election campaigns once the local executive authorities become involved. During the election campaign for the presidency of the Republic of Tatarstan, the entire print-run of a periodic issue of the Kazanskoye Vremya opposition newspaper was seized 128 without a warrant. Observers noted that during campaign season no political advertisement promoting alternative candidates for presidency of the republic could actually be seen (including posters and TV programs). The dissemination of campaigning materials containing false information is commonly practiced. Sometimes, it is the only way for certain candidates to make themselves known during the campaign. Frequently, though, such materials are used by those candidates who have practically obstacle-free access to the media. Campaigning leaflets overflow with fabrications regarding the activity and biography of the candidates. Sometimes, openly xenophobic leaflets exploiting negative ethnic stereotypes are also used. In the city of Chita, for example, anti-Chechen flyers were distributed on election day slandering a local candidate. Flyers disseminated by the election staff of a candidate for the State Duma, N. Bondarik, called everyone to battle against “Lord’s enemies, enemies of Russia and the Russian people,” drive all non-Russians out of Russia, nationalize all property from the “Jewish-Caucasian mob,” and so on. What is more, the same N. Bondarik twice participated in televised debates on a St. Petersburg TV channel, where he bluntly discussed the prospects of ethnic cleansing in the city. Appeals to the prosecutor’s office were of no effect in both cases. It is noteworthy that most campaign materials do not meet the election code requirements; they are anonymous, bear no information on their origin, etc., and therefore, it is practically impossible to identify their authors, buyer, and distributors. It is actual impunity that breeds the widespread xenophobic and racist printing during election campaigns. Campaigning sometimes extends through the official campaigning period into the three days prior to voting day, when campaigning activity is banned by law, and continues even on the election day. Although the procedural side of balloting is generally observed, pressure often mounts on election commissions during voting and the counting of votes. In an attempt to control the outcome of an election, methods such as bribery of voters and ballot rigging are commonly used. For instance, violations in connection with counting of votes were observed in the Samara region and in the Adyg Republic, while the election’s results in one of the constituencies of the Leningrad region were recognized as void due to the confirmed fact of the mass bribery of voters. All in all, there are serious reasons to believe that the democratic nature of elections in contemporary Russia remains in form only. The objectivity of elections is questionable, as election campaigns become mainly the competition of “administrative resources” and that of the candidates and their programs. In such circumstances, it is impossible to assert that the will of the voters is expressed directly and genuinely. ARTICLE 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 129 Paragraph 1, Article 19 of the RF Constitution states that “all people are equal before law and in a court of law.” Paragraph 2, Article 19 establishes that “The state shall guarantee the equality of the rights and liberties of a human being and citizen irrespective of sex, race, nationality, language, origin, property status and official position, place of residence, attitude towards religion, convictions, membership in public associations as well as other circumstances. All forms of restriction of civil rights on account of social status, race, nationality, language or religion are banned.” Under Paragraph 2, Article 6 of the RF Constitution, “Each citizen of the Russian Federation shall, in its territory, enjoy all rights and liberties and bear equal obligations provided by the Constitution of the Russian Federation.” Paragraph 3, Article 37 of the RF Constitution likewise states that “everyone has the right to... labor remuneration without any discrimination.” The provisions of the RF Constitution in relation to the equality of rights and liberties are reproduced in several legislative acts: the RF Civil Code (general equality of persons participating in civil relations); the RF Civil Procedure Code (equality of citizens before the court and the law); the RF Family Code (ban on the restriction of rights relating to marriage and family life on the ground of social status, race, ethnic origin, language, and religion); the RF Criminal Code (equality before the law); Federal Law “On the Fundamentals of the Civil Service of the Russian Federation” (equal access to civil (public) service); Federal Law “On the Police ” (the principle of equal protection of human and civil rights), etc. The Federal Law “On Education” proclaims equal access to education, but does not guarantee equal treatment in the course of the study process. Federal Law “On Citizenship of the Russian Federation” adopted in 2002 also declares equal rights only for Russian Federation citizens, rather than equal access to citizenship irrespective of race or ethnic origin. A number of important legislative acts do not contain any provisions about equal rights or a ban on discrimination. They include the RSFSR Housing Code, Federal Law “On the Fundamentals of the Housing Policy,” Federal Law “On the Fundamentals of the Federal Policy in the Field of Labor Protection” (it deals only with matters concerning physical safety), and Federal Law “On Protection of Consumers’ Rights.” While proclaiming the principle of the equality of rights and liberties, Russian legislation essentially does not contain a ban on discrimination, and the use of the term “discrimination” is extremely limited. There are no legal acts in the country which define discrimination. Apart from Paragraph 3, Article 37 of the RF Constitution, the very term “discrimination” can be seen only in the RF Labor Code, where it is used without definition and explanation. Paragraph 2, Article 19 of the RF Constitution does not contain a definite ban on discrimination. Its first sentence cannot be interpreted as a clear and unambiguous ban on any encroachment on the equality of the rights and liberties, or as an obligation of the state to eradicate violations of equality. The second sentence imposes a ban only on the “restriction of rights,” only on five grounds and only in respect of citizens. Russian legislation and legal practice do not offer a definite interpretation of the concept of the “restriction of rights.” Moreover, Paragraph 3, Article 19 of the RF Constitution and the RF Labor Code introduce the concept of “equal opportunities for the exercise of rights and liberties,” which complicates the practical interpretation of legal norms still further. 130 Therefore, such concepts as “discrimination,” “restriction of rights,” “lawful or unlawful differentiation” remain insufficiently clear for professional jurists and for the public at large. Neither can one trace any definite position of lawmakers and law enforcement authorities. Federal Law “On Appealing to a Court the Actions and Decisions Violating the Rights and Liberties of Citizens” and the corresponding provisions of the RF Civil Procedure Code grant citizens the right to appeal a violation of their rights and liberties to a court. By default, the law equates obstruction of the realization of a citizen’s rights and liberties, the unlawful imposition of any obligation on a citizen, and/or his/her unlawful prosecution with the violation of rights. Nevertheless, in legal practice the same term “restriction of rights” is understood primarily as the direct and open obstruction of the exercise of concrete rights by an individual or by a social category of individuals. Unlawful differentiation which results in negative consequences for a person or a group is not usually perceived as “discrimination” if it cannot be defined as a direct violation of their rights (for instance, in the exercise of discretionary powers, official control, or supervision). In Russia, most legal norms relating to the assurance of the equality of rights are material norms, and the legislation obviously lacks sufficient procedural guarantees against discrimination. The country does not have any special anti-discrimination laws, and the preparation and adoption of such laws are not on the program of the legislative activity of the State Duma. Neither does the country have any special anti-discrimination programs or programs in the field of provision of equal opportunities. There are certain judicial, criminal, and administrative means to prevent and stop discriminatory practices, but they are ineffective and are applicable only in theory rather than in practice. Theoretically one’s rights and liberties can be defended in court (Article 46 of the RF Constitution, Article 11 of the RF Civil Code). Civil rights and other non-material values may be defended, among other things, by the recognition of the right, reinstatement of the position which existed before the right was violated, the stopping of actions which violate the right or create a threat of its violation, invalidation of a disputed deal, invalidation of an act of a government agency or a body of local self-government, compensation for losses, and compensation for moral harm (Article 12 of the RF Civil Code). Article 1065 of the RF Civil Code provides that an activity that may cause harm in the future may be banned by a court decision. Federal Law “On Appealing to a Court the Actions and Decisions Violating the Rights and Liberties of Citizens” and Chapters 23, 24, 25 of the RF Civil Procedure Code (which took effect on February 1, 2003) guarantee the right to submit a complaint against the action or omission of government agencies and municipal bodies, public associations and officials. This can be done when: (1) rights and liberties of an individual have been violated; (2) the realization of rights and liberties is obstructed; (3) obligations or responsibilities are unlawfully imposed on a person. Several cases have been reported where people defended and restored their rights which were violated as a result of discriminatory treatment. Such cases usually concern unlawful dismissals, refusal of registration at the place of residence, refusal to grant the status of a refugee or forced migrant. The subject of the complaints or suits is simply a violation of the 131 corresponding rights. The question of discrimination per se is not raised and is not considered by the court as the subject of the complaint or a suit. When a complaint of a violation of rights and liberties is considered, the court’s motivation is based on the proven fact of a violation of a definite right committed in breach of a definite law. The court does not consider the question of whether there was a different approach to different persons in the same situation. No court rulings on complaints are known which declare some decision, demand, action or omission unlawful because of its discriminatory nature rather than because it violated or restricted definite rights. Neither are any complaints, suits, or court rulings known, which concern discriminatory behavior of government and non-government officials exercising discretionary powers or performing control or supervisory functions. The RF Criminal Code contains Article 136, “Violation of the Equality of Rights and Liberties of a Human Being and Citizen,” which establishes criminal responsibility for “violation of the equality of rights of a human being and citizen” on the ground of sex, race, ethnicity, language, origin, property status and official position, residence, attitude to religion, convictions, membership in public associations, which harmed the “rights and legitimate interests” of citizens. Paragraph 1 of this article provides for punishments ranging from 200 minimum monthly wages to a two-year imprisonment. Paragraph 2 deals with the same crime committed with the use of the official position and provides for a punishment of up to five years of imprisonment. Article 136 is not a private charge article and, consequently, criminal prosecution may be initiated only by a prosecutor or by internal affairs bodies. It defines crime purely in a material sense. Therefore, the violator may be brought to criminal responsibility only if real harm has been done to the victim; an instruction to carry out discrimination or incitement to discrimination is not punishable if it is not public. Article 136 is applied in extremely rare cases. As a rule, prosecutor’s offices are unwilling to initiate prosecution and investigate cases under this article and under Article 282, “Fomenting of Enmity,” of the RF Criminal Code. According to the data of the Ministry of Internal Affairs,159 in 1997 three criminal cases were initiated under Article 136 in 1997, four cases in 1998, five cases in 1999 and one case in 2000. The statistical data about the trials and their results has not been published to this day. None of the legislative acts of the Russian Federation directly provide for some form of special disciplinary responsibility of civil servants for discriminatory behavior. Article 14 of Federal Law “On the Fundamentals of the Civil Service of the Russian Federation” provides only for a general disciplinary responsibility of the civil servant for improper discharge of his/her duties, and contains a reference to the “responsibility under the federal legislation.” There is no information that this possibility has ever actually been used in the Russian Federation. In the Russian Federation, there are no special federal or regional authorities responsible for the prevention and liquidation of discrimination. Theoretically, the RF Ombudsman may consider any complaint about the viola159 Response #34/4-220 of the Main Information Center of the Ministry of Internal Affairs to the Inquiry of State Duma Deputy V. Igrunov, dated June 25, 2001. 132 tion of human rights only after all other remedies have been exhausted, or in the event of mass and regular violations. There are no signs that the Ombudsman has ever concerned himself with the cases of racial or ethnic discrimination. Neither are the problems of discrimination addressed by the recently appointed regional Ombudsmen. Article 52 of the RF Constitution states that “The rights of victims of crimes and abuses of power shall be protected by law. The state shall secure access for victims to justice and compensation for damages incurred.” Under Article 53, “Everyone shall have the right to compensation by the state for harm caused by the unlawful actions (or omissions) of the bodies of state power or their officials.” Material losses may be generally indemnified on the basis of civil suits. Moral harm can be compensated for in the monetary form by a court decision on the basis of lawsuits (Articles 151, 1100 and 1101 of the RF Civil Code). However, the legislation does not provide for any special guarantees of this kind in case of discriminatory treatment and there are no cases where the possibility of compensation of the harm has ever been used in practice in case of discrimination. No administrative means are envisaged for individual defense and compensation. Meanwhile, in reality, the state itself practices, encourages, and supports discrimination on account of possession of identity papers, residence (registration at the place of residence), citizenship, ethnic origin, and membership in public associations.160 Private individuals and non-state structures (mainly employers) likewise practice discrimination on account of skin color, language, age, disability, presence of HIV, while the existing legal mechanisms do not ensure the proper defense, and the state takes a passive stand and does not use the available possibilities. The greatest public danger is represented by discrimination on account of ethnic origin, which is largely the result of the existing passport system. The passport system offers various overt and covert possibilities to refuse registration both at the place of residence and at the place of stay. Under certain conditions, the authorities may either deny registration to persons who belong to a concrete ethnic group or create privileges for a concrete group while restricting the registration of all others. The absence of registration is used as a pretext for restricting civil rights, and in a number of cases these restrictions are applied selectively to definite ethnic groups. As a rule, control over compliance with the registration requirements is also exercised selectively. The restrictions and control procedures are largely aimed against ethnic minorities. Discrimination is manifest in selective and disproportionately frequent detention of persons belonging to so-called visual minorities (i. e., people who differ in appearance from the bulk of the population, and usually identified as Caucasians and Central Asian as well as Roma); unlawful and unprovoked use of violence in respect to detainees; extortion of money; arbitrary and disproportionately frequent searches of dwellings occupied by the persons belonging to such minorities or the offices of their companies; arbitrary seizure of the property or goods which they sell. Thus, the Ministry of Internal Affairs regularly conducts the campaigns called “Tabor” [“Roma Camp”] in various Russian regions under the guise of the fight against crime. These campaigns usually include mass checks of documents and searches of homes of people identified as Roma; sometimes they are deported to the locality in the Russian Federation 160 See the sub-section relating to Article 2.1 of ICCPR in this report. 133 where they were last registered at the place of residence. In spring of 2002, such campaigns were conducted in Moscow and Moscow region, and in the Samara and Tomsk regions. In July-August 2002, the operation was carried out all over the country. On October 16, 2001, the local police deported about 100 Roma from the Krasnodar territory to the Voronezh region where they were registered at the place of residence. Particularly disturbing is the situation of Meskhetian Turks or Meskhetians. They are Turkic-speaking Moslem people who were deported from South Georgia to Central Asia in 1944. Within the boundaries of the former USSR there are 290 000 Meskhetians. After ethnic clashes which took place in 1989—1990 and in subsequent years, about 90 000 Meskhetians were forced to leave Uzbekistan. About 60 000 of them sought asylum in the Russian Federation (at that time — one of the constituent republics), and more than 13 000 fled to the Krasnodar territory. The regional authorities in the Krasnodar territory refused to grant residence permission (now registration at the place of residence) to the Meskhetian Turks. The Krasnodar territory is the only region in Russia where the Turks are en masse deprived of the basic civil and political rights. They cannot receive personal documents (such as a passport or a driver’s license) or renew them if lost or damaged. Their marriages are not officially registered and recognized. The Turks are regularly denied access to justice: local judges refuse to consider complaints and statements of the Meskhetians under various far-fetched pretexts. In many cases, there are reasons to assert that the courts in the Krasnodar territory display a biased attitude towards the Meskhetian Turks who tried to appeal against unlawful refusal by the local police to register them at the place of residence. Oftentimes, the courts delivered decisions against plaintiffs contrary to law. The Turks are completely deprived of access to the social protection system and free medical service. It is not possible for them to receive an education beyond a secondary education. The Meskhetians are regularly checked by the police, including traffic officers, and fined for the absence of registration. They are subjected to frequent “passport regime checks,” including searches of their homes. Cases have been reported where the Meskhetian Turks living in the Krymsk district were held in custody for some time. Since 1992, the regional authorities officially single out the Turks as an ethnic category subject to special discriminatory treatment. On April 24, 1996, the legislature of the Krasnodar territory adopted Resolution #291-P, which obliged adult Meskhetians to go through a special registration procedure once every three months. Since that time, several more acts have been adopted in the territory which establish special requirements for the registration of Meskhetian Turks. In practice it meant that this ethnic group was deprived of access to registration at the place of residence. The same discriminatory treatment is accorded to the Meskhetians who received Russian citizenship and have registration outside the Krasnodar territory, but actually live in the Krasnodar territory. The officials of the Krasnodar territory frequently state that they will create an unbearable living condition for the Meskhetian Turks and other “illegal migrants” so as to force them to leave the region. The RF President, the RF Government, and the prosecutor’s offices do not react to the statements directed against the minorities and to unlawful actions of the gov134 ernment of the Krasnodar territory. Moreover, representatives of the RF President’s Administration have repeatedly stated that there are no disagreements over the migration and ethnic policy between the federal power and the authorities of the Krasnodar territory. In recent years, people coming from the Chechen Republic, and ethnic Chechens in general, have been subjected to various forms of discriminatory treatment. Since the summer of 1999, such actions quickly took the form of a wide-scale coordinated campaign encouraged by the state. The authorities demonstrated their intention to stop at nothing to make the life of the Chechen population unbearable and oust the Chechens into Chechnya. Pressure was bore on the Chechens in various forms: arbitrary checks of passports and personal documents; violent entry into premises, searches, detention and beating; violation of the right to the liberty of movement and choice of residence; systematic inspection of the business companies which belong to ethnic Chechens; trumped up criminal charges; refusal to grant the status of forced migrants; dismissal from jobs. RECOMMENDATIONS The drafters of the Alternative Report have elaborated with the following article-by-article recommendations for the Russian Federation Government in the sphere of observance of ICCPR. ARTICLE 2 Introduce amendments to the 2002 Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” to remove groundless restrictions and discriminatory provisions from the law, and add transitional provisions, which lay the basis for legalizing former Soviet citizens who resided de facto on the territory of the Russian Federation on the date the law entered into force. In particular, ensure that this category of citizens is granted legal status (residence permit) in accordance with the simplified collective procedure. Take measures to replace the passport system with another system of identification and documentation of identity, which is not based on one single identity-certifying document, and is not tied to the place of residence of a person. Ensure the possibility of exercising the rights and freedoms regardless of whether a person has the main document certifying their identity and registration at the place of residence or stay. Revise the legislation and law enforcement practices which lay the basis for systematic ethnic discrimination, primarily the passport system and the practices of the law enforcement authorities. Put an end to the systematic discriminatory restriction of the fundamental civil and political rights of persons belonging to certain ethnic minorities, primarily the Chechens and the Meskhetian Turks. Revise the policy in respect of the Cossack movement, strip the Cossack organizations of their privileged status, such as privileged access of members of the Cossack organizations to civil and other public service. Introduce norms into Russian procedural legislation, which shall: • • impart legal significance to the resolutions of the UN Human Rights Committee when criminal, civil, and administrative cases are examined; provide mechanisms for the realization of the Committee’s decisions in judicial proceedings. Take measures, including legislative measures, to enhance the effectiveness of the remedies, i. e., to make the national remedies more accessible, and 136 create a mechanism of the enforcement of resolutions on the protection of human rights adopted at the national and international level. ARTICLE 3 Establish legislative measures to counter discrimination on the basis of sex and to protect the victims of such discrimination; in particular, establish responsibility for the use of discrimination on the basis of sex. The RF Supreme Court should issue the necessary clarifications for cases of discrimination on the basis of sex. Take measures to orient the law enforcement authorities and other government agencies towards prevention of discrimination on the basis of sex and protection of victims of such discrimination. In particular, work out and adopt instructions for examination by the prosecutor’s offices of complaints against discrimination on the basis of sex. ARTICLE 4 Introduce amendments in Federal Law “On Fighting Terrorism,” in particular, amendments providing for localization and short duration of “counter-terrorist operations” and for mandatory imposition of the state of emergency if there is a danger that the zone of operations of the power structures or the duration of the operation may substantially increase. With regard to the zone of the armed conflict in the Chechen Republic: • • • impose the state of emergency in accordance with the national legislation; carry out derogation procedures provided for by the International Covenant on Civil and Political Rights and by the European Convention on Human Rights and Fundamental Freedoms; admit the fact of an armed conflict and confirm observance of the norms of international humanitarian law. ARTICLE 6 In particular, considering the positive obligations of the Russian Federation under the ICCPR, work out and introduce an effective system of measures aimed at quick exposure of personal crimes, prevention of individual and mass cases of deprivation of life, minimization of losses, effective investigation of personal crimes, etc. Improve the conditions in closed structures, primarily in the army so as to prevent the death of servicemen, primarily conscripts, in non-combat situations. Fully carry out the Views of the UN Human Rights Committee in the case Lantsov v. Russian Federation. With regard to the zone of the armed conflict in the Chechen Republic: 137 • • put an end to unlawful detention of persons, their confinement in unofficial secret prisons, torture and out-of-court executions; carry out effective investigation of crimes committed in the zone of the armed conflict in the Chechen Republic against civilian population, primarily the crimes which resulted in the death of people, in order to prevent their repetition. ARTICLE 7 Amend the RF Criminal Code with an article criminalizing torture and ensure that the definition of torture in national law comply with the definition given in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Transfer examination of complaints against torture, cruel and degrading treatment to the competence of the regional-level prosecutor’s offices (as opposed to the district-level). Work out and adopt instructions for the prosecutor’s offices in connection with examination of complaints against torture, cruel and degrading treatment. These instructions must comply with the Principles on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment adopted by the General Assembly Resolution 55/89 Annex, December 4, 2000, and must include the list of mandatory investigative actions and deadlines for their performance. Work out and adopt a state program for protection of victims of torture, cruel and degrading treatment and for protection of witnesses against pressure and persecution connected with the submission of a complaint or giving of testimony. Work out and adopt a state program for rehabilitation of victims of torture and cruel and degrading treatment. In all police precincts and pre-trial detention facilities display information sheets explaining the rights of suspected and accused persons and detainees, including the right to submit complaints against torture, cruel and degrading treatment. ARTICLE 8 Adopt a federal law on countering trafficking in human beings. Adopt a federal target program and regional target programs of countering the trafficking in women, protection and rehabilitation of victims of such trafficking. Adopt a federal law on civilian oversight and administration of the military organization in the Russian Federation. Cause the authorities to recognize officially that trafficking in human beings, slavery and servitude are an acute and systemic problem of Russia. Prevent emergency of conditions conducive to exploitation of forced labor in connection with the tightening of the passport-visa and migration control. 138 Take effective measures to stop unlawful use of forced labor in closed structures, primarily in the army. Take effective measures against criminalization and involvement in trafficking in human beings of enforcement structures and special services called upon to fight abduction of and trafficking in human beings. Take effective measures to fight corruption in the law enforcement bodies, which gives rise to trafficking in detained persons and human bodies in the zone of the armed conflict in the Chechen Republic. ARTICLE 9 Eliminate the widespread practice of keeping a person in custody without lawful grounds. In particular, elaborate and implement into the law enforcement work a rule according to which a protocol of detention must be drawn up immediately upon actual detention. Radically change the practice of application of such an exclusive measure of restraint as arrest. Use this measure of restraint in exclusive cases when the exclusiveness of such cases has been confirmed and only if there are legislatively established grounds for the use of this measure and the presence of such grounds has been duly documented. Take measures to ensure a wider use of such alternative measures of restraint as bail, recognizance not to leave, house arrest, personal guarantee. ARTICLE 10 Ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopt a federal law on civilian oversight in places of detention so that its provisions comply with the principles set forth in the said Optional Protocol. If a prisoner submits a complaint on torture, cruel and degrading treatment at the places of detention always make arrangements for transfer of the complainant as well as witnesses to an institution under jurisdiction of another territorial penalty execution department. ARTICLE 12 Give a legislative definition of the liberty of movement and freedom to choose residence; clearly define the limits of this right and exclude the possibility of its arbitrary restriction by public authorities, non-state organizations and private persons; establish responsibility, including criminal responsibility, for encroachment on this right. Revise all laws and other statutory acts which lay the basis for the passport system. In particular, liquidate the institution of mandatory registration at the place of stay, abolish all federal and regional regulations interfering with the exercise of the right to the liberty of movement and freedom to choose residence; abolish all regulations and stop the practices which make the exercise of rights and performance of obligations condi139 tional on the possession of a passport and registration at the place of residence; abolish administrative responsibility for residence and stay without a passport and registration and, as a first step, abolish the system of plan targets established for the police with regard to the number of persons to be brought to responsibility for committing administrative offences, including “violation of the passport regime.” Revise Federal Law “On Legal Status of Foreign Nationals” in order to grant all persons who are legally on the territory of the country the right to the liberty of movement and freedom to choose residence. In particular, abolish arbitrary restrictions on the liberty of movement and freedom to choose residence for persons who have temporary residence permits. Ensure that the list of territories with regulated access for foreign nationals be established only by a federal law. Effectively guarantee the right of foreign nationals who permanently reside in the Russian Federation to freely leave the country and, in particular, abolish the institution of exit visa. Make arrangements for issuance of identity certifying documents and tickets recognized by the international community to stateless persons permanently residing in the Russian Federation. ARTICLE 13 Take measures to stop expulsion from the country of foreign nationals and stateless persons with no regard for and contrary to the procedures established by law and stop practices compelling them to leave the country. Grant the persons to be deported the right to appeal the deportation decisions and ensure strict compliance with the principles of the protection of the integrity of a family and non-refoulement — prohibition of forced return of persons to a situation where they are subject to a risk of serious violations of human rights. ARTICLE 14 Ensure implementation of the Views of the UN Human Rights Committee on the cases against the Russian Federation considered by the Committee (Gridin v. Russian Federation, Lantsov v. Russian Federation). Ensure the real equality of the sides in the examination of criminal cases by introducing amendments in the RF Criminal Code, namely: • • • • 140 legislatively ensure the possibility of immediate access of the defense counsel to a person kept in a pre-trial detention facility, without the investigator’s or court’s permission; legislatively provide for the duty of the investigation and court to accept the evidence submitted by the defense and obtained in accordance with law; ensure access of the defense to the evidence from the initial stage of the criminal prosecution; ensure the personal presence of the suspect, the accused, the defendant when his/her complaints are considered at all stages of judicial proceedings; • change the working regulations of courts’ offices to enable the interested persons to gain speedy access to the necessary materials. Ensure the principles of publicity of trials by reducing as much as possible the list of cases to be tried in camera and making the relevant legislative norms more concrete as the existing legislation allows abuse of this form of judicial proceedings. Abolish the institution of military prosecutor’s office and transfer all functions of the military prosecutor’s office to the civilian prosecutor’s office; abolish the institution of military court and transfer all functions of military courts to civilian courts. Upgrade the method of recording the trial proceedings in accordance with the present level of technical development. For instance, make an automatic audio recording of the proceedings during the entire trial, then transcribe the recording and file the transcript and the recording with the materials of the case. ARTICLE 17 Reform the operational-investigative systems (SORM-1, SORM-2) so as to prevent unauthorized access of the law enforcement authorities to the telephone network and electronic data transmission network. Change the regulations on the oversight, primarily, judicial oversight, of the use of the operational-investigative systems (SORM-1, SORM-2) by the law enforcement authorities to prevent unauthorized access to the telephone network and electronic data transmission network. Adopt a law on protection of personal data, including legislative assurance of the right to access to information. ARTICLE 18 The RF President and the top-ranking officials must display a political will to ensure that the actions and statements of government officials concerning the freedom of conscience are guided exclusively by the federal laws and international obligations of the Russian Federation rather than the ideas of these officials about a special role of various religions and/or relations with concrete religious organizations. Any other line of behavior of officials must entail disciplinary measures (if it does not constitute a more serious offence). The regional laws in the sphere of the freedom of conscience must be brought in line with the federal laws. The RF President, the RF Government and the RF Federal Assembly must discontinue any attempts to interfere in the religious life by including in the legal system such concepts as “traditional religion,” “ethno-confessional balance,” “cultural-religious expansion,” etc. and concentrate on assuring the equal right of religious associations to public profession of their beliefs. 141 ARTICLE 19 Carry out privatization of state-owned mass media, including federal TV channels. Carry out privatization of state-owned enterprises engaged in the distribution of the press and take legislative measures to prevent monopolization of the press distribution market. Abolish the 10% VAT introduced in 2001 on the mass media and thus free the mass media from this tax burden. Eliminate the selective practices of subsidies and benefits for mass media. ARTICLE 20 The RF President and the top-ranking officials must make public statements condemning concrete manifestations of racism, nationalism and xenophobia and take political efforts to invigorate the activity of the lawenforcement authorities against persons and, particularly, organized groups engaged in racist activities. Eliminate the practice of ignoring the racist component in the investigation of crimes motivated by racial and ethnic hatred. Racist actions and statements must be legislatively declared incompatible with the civil service at any level. The legislation in this field must be modified so as to narrow the definition of unlawful activity and, simultaneously, minimize the possibility of evading the responsibility for such activity. For this purpose it is important, in particular, that the RF Supreme Court prepare detailed clarifications to the current laws. The legislation must clearly differentiate between serious sanctions for the most dangerous (primarily violent) racist crimes and less serious, less dangerous offences. In particular, it would be useful to introduce fines in addition to warnings and liquidation as a penalty that can be imposed on mass media. ARTICLE 21 Adopt a law on peaceful assemblies. Reduce the period for notification about a peaceful assembly from ten to two days prior to the event, with the corresponding application to be considered by the appropriate authorities within one day. Take measures, including legislative measures, to prevent arbitrary refusal of a peaceful assembly based on a broad interpretation of provisions that allow the right to such assemblies to be restricted in the interests of “national security.” 142 ARTICLE 22 The RF President, the RF Government and the RF Federal Assembly should speedily develop and adopt amendments to the following federal legislation concerning the freedom of association and the work of NGOs: • • • • • • • the Tax Code, in its provisions concerning taxation of NGOs, to introduce exemption of grants from profit tax, VAT on free delivery of services and goods, income tax for recipients of NGO services and income tax on compensation of travel and accommodation expenses for nonstaff participants of NGO conferences and other events; the Civil Code, to allow all types of legally registered NGOs to receive tax-exempt donations; Federal Law “On Charitable Activity and Charitable Organizations,” to expand the list of areas of activities considered charitable in purpose and, therefore, subject to tax benefits; Federal Law “On Foreign, Technical and Humanitarian Assistance,” eliminating the requirement for recipients of such assistance to provide a letter from local authorities agreeing to control expenditure of funds; Ñriminal Procedure Code and Civil Procedure Code eliminating their provisions banning participation of NGO representatives and lay defenders from the court process; Federal Law “On Countering Extremist Activity” and Federal Law “On Public Associations,” to annul their provisions enabling the Ministry of Justice and prosecutor’s offices to suspend activities of NGOs without a court decision; and Article 1, Federal Law “On Countering Extremist Activity,” to make the definition of “extremist activity” more concrete and focused. In preparation of the above amendments, Russian public authorities should cooperate with representatives and experts from NGOs and welcome their recommendations and suggestions. Prosecutors’ offices and the RF Prosecutor General’s Office in particular should pay particular attention to the following manifestations of arbitrary and illegitimate pressure on and persecution of NGOs by local and regional authorities related to critical statements by NGO activists against the authorities and their reports about corruption, human rights abuse and other violations, investigate such cases and provide necessary legal protection to victims of abuse: unlawful interference in the work of NGOs; refusal in registration; repeated checks of NGO activities aimed at paralysing their work, eviction from office space; spreading defaming information; criminal prosecution and criminal conviction of NGO activists; declaring NGO activists insane, subjecting them to forced psychiatric examination, forced placement in mental clinics; threats of physical violence against NGO activists; detainment and beating by of NGO activists by police; dismissal of NGO activists from work and university studies, etc. Special attention should be paid to the situation of NGOs in the Krasnodar territory and the Chechen Republic, where NGO activists are faced with most severe persecutions. The RF President and the RF Government should make public statements to the effect that policy of harassment and persecution of NGOs cannot be tolerated and contradicts the RF Constitution and the principles of democratic society. 143 The RF President, the RF Government and the RF Federal Assembly should review provisions of the 2002 Labor Code limiting ability of trade unions to effectively represent and protect interests of employees; for this purpose develop and adopt amendments to bring the relevant provisions of the Labor Code in compliance with ILO Conventions and allow trade unions to effectively represent employees in negotiations with employers, engage in collective bargaining, participate in labor disputes, organize strikes, participate in the regulation of working conditions, have more power in protecting employees from dismissal, and provide stronger guarantees to trade union activists from dismissal in relation to their participation in the union’s work. Prosecutors’ offices and the Prosecutor General’s Office, in particular, should pay particular attention to the instances of arbitrary and illegitimate pressure on and persecution of trade union activists by employers related to activists’ participation in protection of interests of employees and their labor rights, investigate such cases and provide necessary legal protection to victims of abuse: unlawful dismissal; threats of dismissal, demotion; decrease of salaries; promises of bonuses and increase of salaries for stopping trade union activity; unlawful reorganisation of enterprises with the purpose of eliminating a trade union; threats of physical violence and beating of activists; other forms of pressure by public authorities against trade unions, including eviction from office space, increase of rent, etc. Courts in the Russian Federation should base their decisions on relevant provisions of ICCPR and the RF Constitution when trying cases of violation of freedom of association and persecution of NGOs and trade unions and their activists. ARTICLE 23 Develop a mechanism thereby a child, whose rights are violated by persons or authorities authorized to protect him/her, could receive effective legal assistance. Ensure observance of the rights and protection of minors, stateless persons and foreign nationals. ARTICLE 24 Create a functional system of juvenile justice for protection of the rights of juvenile offenders and other categories of children (including such issues as upbringing in a family, property problems of minors, etc.). Legislatively define the status of an adolescent participant in judicial proceedings and make provisions for rendering him/her legal assistance for representation of his interests in courts of all levels. Make all possible forms of protection accessible to children under the care of the state. Ensure registration of the birth of children regardless of whether their parents have documents certifying their identity. Make real provisions to ensure admission and registration of the first and the last name and the 144 patronymic of the child regardless of whether the marriage of his/her parents has been registered. Guarantee recognition of the Russian Federation citizenship of the child born by stateless persons on the territory of the Russian Federation, regardless of the nature of residence of these persons in the Russian Federation. ARTICLE 25 Introduce uniform procedures for registration of candidates for election in all regions of the country. The requirements of various documents to be submitted for registration of a candidate must not differ in different subjects of the Russian Federation. In this connection, the rules for submission as well as the list of such documents must be approved at the federal level. Oblige the election commissions to ensure that the same (in terms of duration and place in the broadcasting schedule) free time is provided to all registered candidates. The election commissions should strengthen the control over the actions and statements of candidates during the election campaign. The commissions must put on record all breaches of legislation, particularly the crimes which come within Article 282 of the RF Criminal Code (fomenting of ethnic and religious enmity), abandon the practice of double standards when the same offences are taken into consideration in connection with some candidates but remain ignored in connection with some other candidates. Warnings must be issued in accordance with the procedure established by law for all infractions without exception. The courts and the prosecutor’s offices must examine the cases and complaints connected with the electoral process with greater thoroughness and promptness, particularly when decisions of election commissions barring a candidate from participation in elections are appealed. ARTICLE 26 Introduce amendments in the Russian legislation to ensure prohibition, elimination of and punishment for a wider range of manifestations of discrimination than that provided for at the present time and, in particular, introduce in the legislation the definition of direct and indirect discrimination as well segregation, incitement to discrimination, coercion into discrimination and support of discrimination. Impose a direct ban on discrimination in such fields as housing relations and education of all levels. Introduce amendments in the RF Civil Procedure Code and the 1993 Federal Law “On Appealing in a Court the Actions and Decisions Violating the Rights and Freedoms of Citizens” in order to make it possible to submit complaints to a court against any kind of direct and indirect discrimination and segregation per se (even in the absence of a direct violation or restriction of some definite right). Introduce amendments in the procedural legislation to enable public organizations to file suits relating to discrimination and fomenting of enmity, for protection of an indefinite circle of persons. 145 Stop persecution of the Chechens in the whole country and punish its initiators and participants. Defend the rights and freedoms of people belonging to the Chechen minority, in particular, the right to the liberty of movement and freedom to choose residence, the right to labor and education. Stop attempts to forcibly return the Chechens or compel them to return to Chechnya and put an end to creation of obstacles to receipt of identity papers by the Chechens. Stop persecution of the Meskhetian Turks in the Krasnodar territory and punish its initiators and participants. Introduce an accelerated and simplified procedure for assurance of a legal status and rights of people belonging to this group. The collective legalization of this group must include: • • • recognition and defense of their right to ownership of immovable property; their recognition as Russian citizens in accordance with Article 13.1 of the 1991 law “On Citizenship of the Russian Federation;” their registration at the place of residence. Considering numerous reports about fabrication of criminal cases against persons belonging to ethnic minorities, review the cases opened under Article 222 (unlawful transfer, sale, storage, carriage or possession of arms, ammunition, explosives and explosive devices) and Article 228 (unlawful production, acquisition, storage, carriage, sending or sale of narcotic drugs of psychotropic substances) of the RF Criminal Code. Set free and rehabilitate persons arrested and convicted on trumped up charges, compensate them for the harm which they suffered, and punish the officials responsible for such fabrications. II SITUATION OF MOST VULNERABLE GROUPS AND MINORITIES DISCRIMINATION AGAINST WOMEN INTRODUCTION Historically, the women’s and human rights movements existed in the USSR within the confines of the same social phenomenon — Soviet dissent that in 1960—1980 united all champions of individual rights and freedoms. The dissident community was principally open, uniting representatives of a wide variety of movements. All of them employed human rights ideology/rhetoric in their respective struggles. The severe pressure exerted by the communist regime forced Soviet dissenters to stay together. Then, the regime’s fall opened opportunities for the assertion of basic human rights values and active work to find solution to various problems previously identified during the period of dissent. As a result, a once solid community broke into issue-based segments. However, in spite of the transformation of Russian society over the past ten years, discrimination and violations of human rights, including those of women, remain common today. The understanding that individual efforts of each segment of civil society are not sufficient to achieve significant success in this sphere has encouraged the Moscow Helsinki Group (MHG) and 20 regional women’s organizations to undertake joint actiions geared to address this problem. This is how the “Monitoring of the Situation with Discrimination against Women in Russia,” program, an important step towards consolidation of the women’s and human rights movements, was conceived. The unification of the women’s and human rights movements will enable Russian civil society to have a stronger impact on the policy of power structures, decision-making process, and public opinion. In addition, it will help solidify civil society in Russia. The program was implemented from May 2002 through April 2003 with financial assistance from the UK Foreign Office Human Rights Projects Fund. It had two primary goals: 1. 2. To carry out the first specialized monitoring with regard to the situation of discrimination against women with a significant number of RF subjects simultaneously. To create an effective network of women’s organizations united by horizontal links and working experience that will be able to continue monitoring the position of women’s rights and freedom from discrimination in the future and implement other projects in this sphere as well. The monitoring effort was conducted based on a model developed by the Moscow Helsinki Group, in which the Moscow organization acts as coordinator and developer of the common methodology of monitoring. The UN Convention on Elimination of all Forms of Discrimination against Women (CEDAW) was placed at the core of the monitoring methodology, which is in full harmony with the accepted principles of human rights monitoring. CEDAW is a document that outlines international legal obligations of the state with respect to the said problem. Regional women’s organizations have prepared reports on the situation with discrimination against women in their respective provinces. On the basis of these reports and the data obtained from the transcripts of focus-groups and interviews 151 conducted in the regions, the Moscow Helsinki Group compiled this synthesis report, entitled Discrimination against Women in Contemporary Russia. This work does not claim to be a global and comprehensive report but it does offer an overall assessment of the situation as well as outline the main problems and trends. Therefore, the monitoring effort focused not on the identification of a large number of concrete facts of discrimination and detailed examination of individual cases of violation of women’s rights in connection with discrimination, but on the information obtained through application of sociological methods that provides for an overall picture of those problems that are most acute and are viewed as the most relevant by the target group. It also allows one to assess the attitude of representatives of various organs of government towards these problems. In the synthesis report, we did not touch upon the overall situation on the federal level since we had not conducted any research activity of our own on that subject.1 We merely summarized and analyzed regional data, referring to the national context only when necessary to understand the problem. On the whole, the given monitoring effort represents the first step towards systematic monitoring activity on this subject, which regional women’s groups carry out. This approach was of principal importance to the Moscow Helsinki Group, since from the start we have been careful to ensure that our work not overlap with that of women’s NGOs, and especially with that of large specialized research centers. The report fully relies upon the information collected by women’s organizations in the regions, and the Moscow Helsinki Group acted exclusively as a methodological and training center in the sphere of human rights monitoring, as well as the compiler of the synthesis document. The primary objective that we had in mind and that, in our opinion, we have achieved, was to facilitate the professional growth and capacity building of regional women’s NGOs, as well as to enhance their status in the eyes of the authorities and society. At the close of the monitoring effort, we surveyed our regional partners to evaluate how the monitoring activities they conducted with the assistance of the Moscow Helsinki Group had affected their respective situations, if at all. Having analyzed the responses of the women’s groups, we can state that for the majority of the organizations involved, the program’s implementation resulted in a notable increase in press coverage. The materials collected by these organizations during the monitoring effort were novel in Russia. Seeing this, local journalists started actively replicating that information and turning to women’s NGOs for more data and assessments. The very fact of their participation in a large interregional project under the auspices of the Moscow Helsinki Group led local authorities to pay closer attention to their activities and cooperate. In addition, the NGO’s, now armed with statistical data and analysis proving their issues relevant, gained a great deal of credibility with their local governing bodies. Leaders and representatives of the NGOs began to receive invitations to take part in high profile panel discussions and conferences. Monitoring activities also helped attract youth to regional women’s organizations and open discussion groups on their premises. For a number of organizations, this work has become an incentive for more active participation in the political life of the region, and in particular, in the election process. All the regional project participants emphasized that the program provided them with an opportunity to master a complex methodology that will enable them to continue their monitoring activities in the future. The organizations largely noted that conducting interviews and focus groups will prove an invaluable skill in soliciting information, from both authorities and the general public. 1 Such activities are carried out, for example, by the Consortium of Women’s Nongovernmental Associations and the Moscow Center for Gender Research; we tried to avoid duplication in this project. 152 Most important for us is the fact that the regional women’s organizations have apparently developed a taste for monitoring activities and have begun to use the tool of monitoring as the basis for effective protection of women’s rights and promotion of the women’s movement. The program has prepared women’s organizations in the regions for systemic cooperation with international mechanisms for human rights protection. For women’s NGOs, this work has been a trial step in preparation for participation in the compilation of a comprehensive alternative (nongovernmental) report on Russia’s compliance with CEDAW. The respective UN Committee will consider the next (sixth) Russian report in the relatively near future; women’s organizations have yet to submit a well-rounded review of Russia’s observance of all of its obligations under the Convention. This will be possible only with the collaboration of many organizations, organizations that are not only adequately qualified but also experienced in human rights monitoring. We hope that competent Russian women’s NGOs will organize the preparation of an alternative to Russia’s sixth periodical report and that our regional partners in this program will take an active role in this process. Finally, we are confident that our program has assisted women’s and human rights NGOs in achieving a qualitatively new level of cooperation. Monitoring activities, compilation of alternative reports to treaty bodies, and overseeing state observance of recommendations of international authorities constitute a real platform for interaction among human rights and women’s organizations on a day-to-day basis. Moreover, constant close collaboration between NGOs of various backgrounds is the only way to consolidate and strengthen the position of Russian civil society. * * * Thus, we are proud to present the report Discrimination against Women in Contemporary, based on results of a broad interregional monitoring effort. In the course of collecting data on discrimination against women in various territories, regional monitors conducted surveys, interviews and focus-groups. At the current stage of civil society development, in which Russian NGOs still face the problem of limited resources for monitoring activities and the unwillingness of state agencies to provide detailed information, sociological methods of research assume a particularly important role as they allow NGOs to obtain primary data on the realities of particular human rights issues as well as identify releant key problems and trends. The women’s organizations involved in the given effort conducted focus groups with women in their respective regions, with each focus group’s participants also filling out a detailed questionnaire. They also carried out a series of expert interviews: one with a male deputy of the regional or local legislature, one with a female deputy of the regional or local legislature, one with a deputy-member of the legislative committee targeting women’s issues, and one with a staff-member of the relevant bodies within regional administrations.2 Also, in those regions where our partner-organizations were most experienced, the organizations conducted their own surveys and used the collected data in their monitoring reports (for example, a survey of employers in the Irkutsk region, a survey on domestic violence in the Republic of Tatarstan, a large survey in the Rostov region, etc.). Close comparison and analysis of several different types of data (statistics, official replies of regional and local state institutions to the monitors’ inquiries, factual data collected by the monitors, expert assessments given by NGO representatives, survey-questionnaires, transcripts of interviews and focus groups) enabled the authors of the regional and synthesis reports to make specific conclusions on the situation of discrimination against women in Russia. The program covered only 20 out of 89 regions of the Russian Federation, so we have no formal grounds to state that our 2 Legislative committees addressing women’s issues have various titles. One example is “Committee on the Affairs of Family, Motherhood and Childhood.” 153 conclusions are applicable across Russia. However, taking into consideration that in 20 very different regions very similar problems have been identified, we are practically certain that the patterns we outline and the conclusions we make in this report are relevant for the country as a whole. The report is not an article-by-article commentary to CEDAW. However, relying on the Convention’s articles, we identified ten subject blocs that comprise the main problems in the observance of obligations imposed by this international treaty on the Russian Federation. These blocs correspond with the first ten sections of the report. Two concluding sections of the report are dedicated to the problems of domestic and sexual violence and opportunities to solve them. These subjects do not fall within the confines of the Convention but are so painful from the viewpoint of Russian women that the MHG and the regional groups involved in the given effort decided that we could not afford to leave them alone. In addition, we deemed it worthwhile to supplement the report with an overview of international legislation in the sphere of discrimination against women and an expert essay on the issue of discrimination against women in Soviet and Russian law. The latter subject deserves special attention for a number of reasons. At the turn of the 20th century, Soviet Russia became the first state in the world whose Constitution guaranteed equality of men and women. Later, this principle was further developed within Russian legislation. Nevertheless, the problem of de facto discrimination against women had been a relevant one throughout the entire history of the USSR and remains one significant in contemporary Russia. Moreover, the situation of women in Russia today is worse than in Western countries, which introduced the sex equality principle in their legislation later — in some cases decades later — than Russia had. In her article “Road to Equality: the Problem of Discrimination on the Grounds of Sex,” L. Zavadskaya, a prominent lawyer and one of the leading Russian experts on the problem of discrimination against women, has attempted to provide an explanation to this phenomenon. Finally, we included into the report a special overview of the human rights situation of women in the Chechen Republic as the problem faced by women in this conflict zone deserve a separate treatment RECOMMENDATIONS OF THE MOSCOW HELSINKI GROUP AND REGIONAL WOMEN’S NONGOVERNMENTAL ORGANIZATIONS BASED ON THE MONITORING FINDINGS When regarding the subject of discrimination against women in the contemporary Russia, it should be taken into consideration that although the ban on discrimination (including gender-based discrimination) is incorporated into Russian legislation from the RF Constitution to federal and regional laws, the actual situation is characterized by a lack of mechanisms providing for implementation of these norms, reinstatement of rights of discrimination victims, and criminal proceedings against perpetrator . Note that the majority of government representatives do not view the prohibition of discrimination as main object of their work. This applies to genderbased discrimination as much as it does to any other sort of discrimination. The key factor is that discrimination cases, including those related to gender-based discrimination, are practically absent in Russian courts. The lack of standard criteria in judging whether discrimination has occurred in each concrete case deprives the victim of an opportunity to successfully prove the fact of discrimination. Courts, in turn, refuse to accept such lawsuits and tend to insist on the rewording of writs (instead of discrimination — violation of a certain right). Also, no improvement of the situation of women’s rights as well as with gender-based discrimination is possible without the development and implementation of a large-scale multi-level educational program on gender issues. The monitoring has persuasively demonstrated that the society as a whole and, most importantly, women themselves regard the problem primarily in terms of violation of social guarantees; women maintain a variety of gender-related stereotypes that complicate the perception and acknowledgement of discrimination. The state undertakes multifaceted efforts in order to improve the social status of women but practically all of these efforts neglect the aforementioned fundamental problems, which make it possible to assert that Russia does not fulfill its obligations, first and foremost with respect to provisions of Article 3 of the UN Convention on Elimination of all Forms of Discrimination against Women, which reads as follows: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the 155 purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Based on results of the monitoring effort conducted by the Moscow Helsinki Group and its regional partners, the following recommendations have been developed. RECOMMENDATIONS I. To Legislative Authorities • • • • • • • • Adopt the Law “On State Guarantees of Equal Rights of Men and Women in the Russian Federation.” Adopt the Law “On Countering Domestic Violence.” Amend the Tax Code to provide for benefits for women entrepreneurs. Publicize reports on the implementation of The Federal Concept of Legislative Activity Targeted at the Provision of Equal Rights and Opportunities to Men and Women. Involve women’s NGOs in legislative activities in order to account for the gender perspective. Adopt the Law “On Suppressing Sexual Harassment.” Adopt the Law “On Suppressing the Trafficking of Women.” Amend the legislation to provide for safety measures for victims of domestic and sexual violence, periods of investigation, and court proceedings. II. To Executive Authorities • • • • • • • • • 156 Publicize reports on the implementation of federal and regional Programs “On Improvement of the Status of Women.” Adopt federal and regional programs on protection and rehabilitation of victims of domestic and sexual violence including an adequate number of consulting centers and shelters for victims of violence. Adopt federal and regional programs targeted at elimination of trafficking in women and protection and rehabilitation of trafficking victims. Provide necessary financial support to the already existing crisis centers, including nongovernmental ones, as well as shelters for victims of domestic violence. Develop and adopt a federal educational program on gender issues in a joint effort with NGOs. Make all possible efforts to pay all arrears on social benefits and prevent payment delays in the future. Actively interact with international bodies monitoring gender-based discrimination and reviewing complaints, first and foremost with the UN Committee on Elimination of all Forms of Discrimination against Women. Cooperate with NGOs to draft objective periodic reports to the UN Committee on Elimination of all Forms of Discrimination against Women. Publicize all periodic reports of the Russian Federation to the UN Committee on Elimination of all Forms of Discrimination against Women, in particular the upcoming Sixth Periodic Report, as well as recommendations of the Committee to the Russian Federation. • Develop a program to eliminate remuneration- and promotion-related discrimination in the workplace and implement it at the federal and regional levels. III. To Political Parties • • Establish quotas in party election lists, including for the top three places on the list. Amend party programs to include a section on gender policy. IV. Regarding Education and Awareness-Raising • • • • • • • Introduce gender issues into educational programs and modify relevant textbooks. Introduce a gender equality aspect into social science programs in secondary schools and institutions of higher learning. Introduce an obligatory training course for state employees, employees of law enforcement agencies, and other officials on inadmissibility and suppression of discrimination against women and sexual harassment. Introduce an obligatory training course for employees of law enforcement agencies and health care institutions on the protection of women victims of domestic violence, sexual violence, and sexual harassment. Introduce obligatory training courses for judges on legal protection of victims of discrimination, in particular gender-based discrimination, as well as domestic violence, sexual violence, and sexual harassment. Introduce obligatory sexual education courses for students in secondary schools. Facilitate enlightenment of the population on gender issues and form a respectful image of women by financially supporting relevant publications in the mass media. V. To Mass Media • • • Initiate educational and awareness-raising publications as well as television and radio programs dedicated to the issues of gender equality, protection of women from discrimination, domestic violence, sexual violence, and sexual harassment. Facilitate the formation of a positive image of women in power, politics, and professional and public life. Prevent the humiliation of women and dissemination of stereotypes and opinions contradicting the gender equality principle in mass media materials (such measures can include the development of a relevant code of ethics). VI. To the Judiciary • • Judicial bodies should provide a separate line item in their reports to account for statistics related to discrimination-related cases. The Supreme Court should provide detailed explanations of the existing counter-discrimination legislation, especially in the sphere of labor relations. VII. To the Healthcare Industry • Significantly increase financial support for gynecological and obstetric facilities and care. 157 • • • • Publicize a detailed list of gynecological and obstetric services that health care institutions must provide at no charge. Organize programs and permanent centers for distribution of contraceptives among youth. Organize anonymous reproductive health clinics for youth. Ensure that any woman with a state medical insurance policy must be unconditionally granted medical assistance in any public health care institution regardless of the patient’s registered place of residence. VIII. For the Penitentiary System • • • • Provide quality reproductive health services and equipment to women prisoners. Actively apply legal norms which call for mitigation of criminal penalties and undertake to reevaluate imprisonment terms for women with small children. Develop and adopt a legal provision ensuring that children born in penitentiary facilities live with their imprisoned mothers. Ensure that all imprisoned women serve their sentences in regions of their permanent residence. IX. For the Department of Labor • • • Have the burden of payment for childcare benefits and subsidies lie directly with the state social security system. Incorporate provisions ensuring delivery of existing benefits for pregnant women and mothers of small children into the obligatory form of employment contract. Enforce labor-related legislation that prevents discrimination in the employment process. X. For Law Enforcement • • Enforce the law with respect to protection of victims of domestic and sexual violence, as well as in the protection of victims of discrimination. Develop instructions for police officers on ethical treatment of victims of domestic and sexual violence. XI. To Women’s Rights NGOs • • • • 158 Engage in dialogue with federal, regional, and local authorities and with mass media. Carry out information campaigns and public events dedicated to gender issues in cooperation with not only women’s but also human rights, youth, ecological, and other NGOs. Organize workshops and training sessions on gender issues for human rights, youth, ecological, and other NGOs, as well as for representatives of mass media. Enhance cooperation with international human rights protection agencies, in particular by developing alternative reports on Russia’s observation of its obligations related to discrimination, including genderbased discrimination. DISCRIMINATION AGAINST WOMEN1 DISCRIMINATION AND LEGISLATION The ban on gender-based discrimination lies at the heart of federal legislation. According to Article 19 of the RF Constitution, “the state shall guarantee the equality of rights and liberties regardless of sex” (Paragraph 2), and “man and woman shall have equal rights and liberties and equal opportunities for their pursuit” (Paragraph 3). In addition, Paragraph 5, Article 15 of the Constitution provides that “if an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty shall apply” (including the UN Convention on Elimination of All Forms of Discrimination against Women (CEDAW) ratified by the USSR in 1980). The RF Labor Code (Article 3), the RF Family Code (Paragraph 3, Article 1), the Criminal Code (Article 4) and other normative acts contain provisions forbidding gender-based discrimination. However, results of the monitoring effort conducted by Russian regional human rights organizations under the aegis of the Moscow Helsinki Group a few years ago clearly demonstrated that “in spite of the abundance of legal norms banning discrimination, no mechanism has been put into place to account for their enforcement; in particular, no concrete sanctions are stipulated in connection with violation of relevant provisions.”2 Practically nonexistent are normative documents designed to directly counteract discrimination or provide for mechanisms to eradicate discriminatory practices and reinstating violated rights. Draft laws containing such provisions do not find enough support among legislators. For example, the amendment to Federal Law “On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum” banning electoral lists of candidates consisting of more than 70% of individuals of the same sex failed to garner enough votes when considered by the deputies of the State Duma on April 26, 2002, and therefore was never included in the law. It is important to note that violations of human rights in Russia are linked not so much to faults with the legislation, which on the whole complies 1 Report Based on the Findings of a Monitoring Effort Conducted by the Moscow Helsinki Group and Women’s Groups in 20 Regions of the Russian Federation 2 “Report on the Observance of the Rights of Women in the RF,” Human Rights in Russian Regions — 1999 (Moscow: Moscow Helsinki Group, 2000, p. 239). 159 with international standards, but rather to unlawful practice and lack of effective protection mechanisms. It is not surprising, therefore, that in the course of the given monitoring initiative conducted by regional women’s rights groups, no legislation discriminating against women or targeted against discrimination were identified in any of the 20 regions surveyed. Currently, it is only the legislation aimed at improving of the status of women (including the national and regional plans of “actions targeted at the improvement of the status of women and enhancement of their role in the society,” adopted in only some regions of the Russian Federation), which can be characterized as evolving. It is telling that the majority of the representatives of executive and legislative authorities interviewed in this monitoring effort failed to name a single concrete normative act protective of women, even though some of them did refer to documents that were supposed to directly facilitate (but usually facilitated indirectly) the improvement of the status of women. Responses of representatives of two regional administrations to the question “which normative acts securing the rights of women have been adopted in the region over the past year?” can be used to back up the argument above. A Kaliningrad representative said: Currently underway in the Kaliningrad region is the development of draft documents on family well-being; under consideration are issues related to interaction with women’s organizations. It is assumed that [these organizations] will take part in the implementation of the programs.3 And according to a Stavropol representative: The Stavropol territory has adopted an action plan to implement the National Action Plan on the Improvement of the Status of Women and Enhancement of their Role in Society #855-p approved by the Government of the Russian Federation on June 28, 2001, designed to be implemented until the end of 2005. Normative acts regulating the payment of child benefits, organization of summer camps for children and adolescents, and the development of a network of social institutions catering to families and children are geared to one degree or other to secure women’s rights in the territory.4 In addition, the very topic of discrimination against women is not viewed as relevant by legislators. According to a deputy of the Moscow City Duma, T. Portnova, “over the past year [2001] the Moscow City Duma did not deem it necessary to adopt special acts regarding any type of discrimination against women.”5 The position of the Murmansk Regional Duma appears to be even more eloquent: 3 Interview with the head of the Division on Family, Children, and Adolescent Affairs of the Health Care Department of the administration of the Kaliningrad region. 4 Interview with the deputy-head of the Department on Social Protection of Families, Maternity, Fatherhood, and Childhood of the Ministry of Labor and Social Protection of the Population of the Stavropol territory. 5 Interview with a female deputy, Moscow. 160 The Charter of the Murmansk region and the Agenda of the Murmansk Regional Duma do not account for examination of issues related to discrimination against individuals of either sex or regulation of their legal status. Legislative activities of the regional Duma in the social sphere are targeted at the protection of interests of all residents of the Kolsky transpolar area. Therefore, there are no documents in the regional legislation that discriminate against women. The Regional Duma has no information about violations of women’s rights or participation of deputies in the examination of such issues.6 Analysis of the legislation of “Actions Targeted at the Improvement of the Status of Women and Enhancement of their Role in the Society” to identify gender-based discriminatory provisions in the implementation of regional plans showed that these plans were effectiveonly to a small extent. Thus, on May 30, 2000, the government of the Penza region adopted Resolution #306-p “On Analyzing Legislation of the Penza Region in Order to Verify Observance of the Rights of Women as Provided for by the UN Convention on Elimination of all Forms of Discrimination against Women.”7 Another such example would be the activities geared to encourage women holding managerial positions and women-entrepreneurs: for example, Resolution #31, “On Activities Associated with Preparation for Participation in the All-Russian Forum “Women-Entrepreneurs of Russia,’” and Resolution #330, “On Organization and Conduct of the Regional Contest “Woman-Manager of the Year 2001,” adopted by administration of the Kaliningrad region on February 1, 2002, and August 22, 2001, respectively. All in all, the results of this monitoring effort once again demonstrated that anti-discrimination legislation is essentially non-existent in Russia. DISCRIMINATION AGAINST WOMEN IN ELECTIONS According to the national legislation, women enjoy the right to run for office on a par with men. Nevertheless, the proportion of women in representative bodies as well as in administrations at various levels remains low, especially in comparison to Western European countries. The proportion of women in the RF State Duma’s current (third) convocation is 8%. Plus, over the past ten years the percentage of female deputies in the State Duma has been decreasing.8 The proportion of women-deputies in legislative bodies of those regions of the Russian Federation covered by the given survey varies from 19% in the Karelia Republic to 0% in the Novosibirsk region. This level is higher in representative bodies of local self-government. At the district level, women-deputies constitute 33% in the Kaliningrad9 and Kurgan regions, and 19% in the Rostov region. On the whole, these indicators tend to be even higher at the municipal level. For example, the pro6 Reply to an inquiry of the Murmansk Regional Duma #01-28/870D, signed by Acting Chairman of the Murmansk Regional Duma, O. Alekseyev, dated September 7, 2002. 7 However, as we have already mentioned, Russian legislation does not contain laws that directly discriminate against women 8 The proportion of women in the State Duma’s first session (1993—1995) was 14%. In the second (1995—1999) — 10%. 9 Note that this is 3.5% higher than in the previous assembly. 161 portion of women deputies in all representative bodies of local selfgovernment both in the Stavropol territory10 and in the Kurgan region amounts to 40%. Very few women hold elected office within executive agencies. In Russia, there is not a single female head of regional government. Women appear to head administrations in small towns and settlements only. For example, in the Kaliningrad region, women head administrations of two out of 22 municipalities (the town of Pionersky and the Cherniakhovsky district). In the Kurgan region, women head two out of 22 district centers. Thus, it is apparent that women do not exercise their right to hold an office to a significant extent. Factors accounting for this situation were identified in the course of expert interviews and focus groups conducted within the framework of the given monitoring effort. To note, it is not only female legislators, but also the majority of the surveyed male legislators who maintain that representation of women in organs of government is insufficient. Out of 12 deputies only three are women, i. e., 25%. One of them presides over the Committee on Taxes and Dues; another one heads the Committee on Social Issues. I think that women are poorly represented.11 Also: Women are practically not represented in regional bodies.12 At the same time, the interviewees and the focus groups participants very rarely raised the issue of increasing the level of representation of women among deputies and elected administration heads. It is also important to mention that according to the majority of the surveyed male deputies, women should be better represented in government not because women should have more opportunities to exercise their rights, but because they are capable of solving certain problems (mostly related to social issues) that men are unable to handle adequately. To quote: Should there be women in legislative authorities, then certain things, especially the social bloc, would be tackled more persistently than with men only.13 Also: Women more actively respond to social problems, to vulnerable population groups.14 Women legislators were quoted as saying the following: By virtue of their natural integrity, women work to achieve concrete results in the economic and social spheres. It is a consequence of their physiological peculiarities and the function in society. In view of the role that the woman plays in society (that of the mother), she is responsible 10 This indicator grew by more than 8% as compared to previous elections, as in the Kaliningrad region. Interview with a male deputy, Altai territory. 12 Interview with a male deputy, Krasnodar territory. 13 Interview with a male deputy, Voronezh region. 14 Interview with a male deputy, Krasnodar territory. 11 162 for the family and therefore, she does not play but works for the benefit of her cause. The woman makes more balanced decisions based on the interests of the population and available budget. The man is focused on moneymaking and quasi-political abstractions. The woman advances the cause: the budget is for those who live on it.15 Also: Having gained power, the woman effectively solves societal problems: children, families, pensioners.16 The democratic principle of power formation has been also referred to by female legislators. For example: If women constitute one half of the electorate their proportion in bodies of power should be approximately the same.17 Thus, the prevalence of men within organs of government is perceived as negative due to their ineffectiveness in addressing social issues and solving other pressing problems of government: Power is men, as a rule, and they are, in my opinion, greatly distanced from women’s problems.18 Note that on the whole, the issue of electoral rights did not appear to be of paramount importance to the focus groups participants. Generally not one, and only very rarely more than one of the participants in each group mentioned this problem in their responses. Responding to the question “What in your opinion is of paramount importance for the protection of women’s rights?” focus groups participants chose the option “access to/participation in power” noticeably less often than such options as “child benefits” or “employment.” Focus group participants frequently viewed the underrepresentation of women as additional evidence of discrimination. Achieving anything will be very difficult since the power, money, everything belongs to men.19 Also: Men are everywhere, in every office, in high positions. And they do not tolerate women above them. It is obvious from our power structures.20 This most likely is associated with the general disappointment of Russian society with the institution of elections and its lack of trust in representative bodies.21 Still, practically all the women respondents and the majority 15 Interview with a woman deputy, Kaliningrad region. Interview with a woman deputy, Krasnodar territory. 17 Interview with a woman deputy, Kurgan region. 18 Focus group, Udmurt Republic. 19 Focus group , Stavropol territory. 20 Focus group, Pskov region. 21 According to the survey commissioned by the Central Election Commission’s Research Center that was conducted in summer of 2000, not more than one fifth of the voters trusted that elections conducted in the regions were fair. However, 30% of the voters also believed the institution of elections to be of paramount importance for transition of power. 16 163 of the surveyed men share the opinion that representation of women among deputies as well as other elected positions should increase.22 We discovered in focus groups that women are discouraged from seeking political positions by the tough and sometimes overtly criminal nature of political life, illegal campaigning tactics, and indirect advantages that men have in the political process. So why would she want to do it [put forth her candidacy for office]? To have her private life exposed? To have her kids followed and threatened and other things like that? Women think first of their children.23 Also: It seems that wealthy women do not go into power because there is too much criminal activity [in politics]. They simply fear for their lives. And they do not believe that they can actually change anything in there. Look at the Governor of Magadan — so much strength there was in that man, and where is he now? Take a woman example —Galina Starovoitova.24 Yes, such examples are very, very numerous.25 Also: Unfortunately, there are but a few women in power. Not all the women are capable of campaigning on par with men, considering the fact that they are indeed women.26 Also: Even if she breaks through and gets there, she will be humiliated by men even if she is a high class professional, which men will never acknowledge.27 In terms of obstacles that women encounter when seeking political authority, female legislators most frequently refer to the fact that financial opportunities for women and men running for deputy are not equal. When women lose elections they do it only because they lack money, because any election of course costs money.28 This statement is supported by quantitative data. According to the election commission of the Stavropol territory, the average election fund of male candidates who participated in the 1999 State Duma Election for the Stavropol territory was six times larger than that of a female candidate (358,000 rubles and 56,000 rubles, respectively). The majority of women candidates do not represent any influential political or business interests, which also significantly diminishes their chances 22 It should be noted here that the majority of the surveyed deputies, regardless of their gender, are against introduction of a system of quotas to increase the number of women deputies. 23 Focus group, Voronezh region. 24 Galina Starovoitova, a renowned democratic leader and parliamentarian, was murdered in November 1998. 25 Focus group, Voronezh region. 26 Focus group, Karelia Republic. 27 Focus group, Smolensk region. 28 Interview with L. Savochkina, Deputy Chairperson of the Social Policy Committee of the Saratov Regional Duma. 164 of success, especially considering the manipulative nature of contemporary Russian democracy.29 That’s exactly what I was told — “you are honest, we’ve been watching you, but you weren’t anyone important.” Also: I am constantly asked whose interests I represent as a candidate. Well, those who have won are all directors of open joint-stock societies — those who can be used, who can be manipulated.30 At the same time, male candidates tend to resort to illegal and openly criminal methods when campaigning against women candidates for legislative or executive office. For example, in January 2002, G. Fomenko, candidate for head of the Cherniakhovsky district (Kaliningrad region), informed the press that ten days prior to the second round of elections she had been attacked by an unknown man. Threatening violence, the attacker demanded that she withdraw her candidacy.31 Chairperson of the Penza Regional Duma, S. Pinishina, also confessed in her interview to the local television channel in March 2001 that she had been frequently threatened over the telephone during and after her election campaign for a Duma position; the offender was demanding that she stop her political activities. Mass violations of election law with respect to women candidates also took place in 1999 in the Rostov region during the State Duma election campaign. Administration of the village of Bagayevskaya of the region exerted pressure against representatives of a public organization that campaigned in support of women candidates, demanding that the candidates end their campaigns. One week prior to election day, the director of the fifth channel of the Novocherkassk television (also, Rostov region) denied a woman candidate airtime for which she had paid, on the premise that he had never seen documents proving the payment. Once the election was over, the assets paid for the airtime were returned to the candidate. Negative campaign materials (so-called “black PR”) are also used against women-candidates quite extensively. In 2002, during Saratov Regional Duma election, a flier was issued against one of the female candidates containing the following image: a woman riding a camel to the Duma across the Saratov bridge. Above and below the drawing were the inscriptions: “We will go, we will race” and “Who’s footing the bill?” A similar situation took place in Moscow. In that case, a woman-candidate faced an overtly discriminatory attitude. L. Adamskaya, member of the Sviblovo district council of the city of Moscow described her experience: 29 See “Right to Periodical Change of Power through Elections,” Human Rights in Russian Regions (Moscow: Moscow Helsinki Group, 2002). 30 Interviews with women candidates. Quoted from regional report of the Saratov region. 31 G. Fomenko won the election, having collected 46.6% of the votes in the second round. She is now heading the Cherniakhovsky district for the second consecutive term. 165 When I ran for the district council for the second time I held only one public meeting. That proved to be enough. I conducted no more meetings and I won. I collected 20% more votes than the then-head of the district council. Why so many? Because 24 hours prior to the moment when all the campaigning was to be stopped a flier was issued saying that I belonged to the Jewish-Masonic Lodge, that I was a street leader, and that years back I had infected and now continue to infect young people with bad diseases… We had a conversation with the head of the Sviblovo district police department, who told me that I had to understand that, street leader or not, women and politics were two incompatible things. It turned out that the then-head of the district council gave the following order, “If L. Adamskaya makes it to the district council now, the Prefect will come over and say that we will have to elect the council head from among district councilors. She is in my way. Something has to be done.” And the cable TV studio joined in to make up a story about me… But the voters, having looked at that flier, then made their choice in a way that the district council head had never counted on. On the whole however, overt discrimination against women, both in the form of negative campaigning built on sexist stereotypes and in government, is seen rather infrequently. Authors of regional reports conclude that the small number of women candidates for office and the still smaller number of successful women are primarily due to their inadequate financial and administrative resources as compared to those of men. THE RIGHT TO PARTICIPATE IN GOVERNMENT AND PUBLIC SERVICE Under Russian legislation all citizens are entitled to enjoy an equal right to participate in state governance and to have equal access to public service regardless of gender (Articles 19 and 32 of the RF Constitution, Article 21 of Federal Law “On Public Service”). No direct constraints on women’s right to participate in public affairs or to hold public positions have been recorded either before or in the course of this monitoring effort. Nevertheless, real involvement in governance is better determined by how many women occupy positions that influence federal, regional, and municipal policy. In the monitored regions, female participation in representative bodies remains insignificant, thus barring them from influencing state policy.32 However, at least half of the legislators (both men and women) interviewed noted more women in executive offices. There are more women in executive agencies and they shoulder most of the executive workload. With elected positions the situation is different. Women are kind of reluctant to assume legislative power.33 32 33 See the section “Discrimination against Women in Elections.” Interview with a female deputy, Republic of Karelia. 166 Also: Female representation in executive agencies is broader than in legislative bodies.34 This opinion is supported by statistical realities. In the Altai territory, women account for 56% of all public servants; in the Republic of Komi — 77.8%; in the Rostov region — 70.4%; in the Tula region — 65.5%; in the Udmurt Republic — 72.4%. However, it should be noted that when we refer to female participation in representative bodies we are referring specifically to legislators, while on the other hand participation in executive agencies includes positions at all levels, including those with relatively little influence. Statistics show that women rarely occupy powerful executive offices: in the Rostov region, women occupy 12.5% of “highest” and 39.4% “chief” positions; in the Tula region — 30% and 54.5% respectively; in the Penza region, there isn’t a single woman occupying a “highest” position and only 9% occupy “chief” positions. Small wonder that legislators describe female representation in executive bodies in the following way: Female secretaries, employees, department heads in education and health care account for 60%. In the course of my work, I communicate with women from this category.35 Also: Women are practically not represented in the power agencies. Especially in the executive branch at the level of municipality administration and at the region level. In fact, we haven’t a single female directorate head or region administration deputy head.36 Also: In Karelia, we have only two female ministers in the executive branch (Minister of Culture and Minister of Education); but in general, lots of women are working in different ministries and in local governments.37 Also: In the executive power bodies, there are no women heading a department.38 Apparently, such a situation is brought about by a set of reasons including a biased , stereotype-based attitude on the part of males: The woman is destined to give birth to babies but not to manage her family. It is the man who plays the main role. The man, driven by his hormones, is a real leader and fighter, whereas a female leader is an ex- 34 35 36 37 38 Interview Interview Interview Interview Interview with with with with with a a a a a male deputy, Rostov region. male deputy, Kaliningrad region female deputy, Voronezh region. female deputy, Republic of Karelia. female deputy, Kurgan region. 167 ception. Males are top managers — it is in there nature. The woman is an assistant.39 A female legislator noted: In the executive agencies, leading positions are predominantly occupied by men. Women occupy secondary, insignificant positions because they are not promoted. Their career development is hampered.40 Actual discrimination manifests itself not only in the positions women can occupy but also in terms of the recognition they receive: When we were attending a gala-meeting to celebrate the 65th anniversary of the Rostov region I noticed that hardly one-fifth of those honored with various commendation letters and certificates were women. According to my count, out of 50 people honored there were only five or six women.41 THE RIGHT TO EQUAL ACCESS TO EDUCATION Russian law provides all citizens, irrespective of sex, with the right to receive basic general and high vocational education, and equal opportunity to compete to receive higher education (Article 43 of the RF Constitution, Article 5 of Federal Law “On Education”). In Russia, the educational level of women is higher than that of men: 63.8% of women have higher, incomplete higher, or high vocational education, while for men, this indicator stands at 50.8%. At educational institutions of different levels, half or more of all students are girls or women: 50.2% at general education schools (57.3% in high grades), 55% at high vocational schools, and 56% in high schools. Notably, the numbers of male and female students is about the same at schools requiring payment.42 The information contained in the regional reports based on the monitoring findings confirms the national statistics. In the Irkutsk region, 55% of university and institute students and 59% of high vocational students are women; in the Karelia Republic, the respective numbers are 59% and 41%; in the Penza region — 51% and 53%. So on the whole, it is possible for women to exercise their right to education without discrimination. This is also confirmed by the interviews conducted within this monitoring effort, where female interviewees described education as a field in which the principle of equality between men and women is observed: I think that in our country women’s right to education is honored, at least in schools of higher learning.43 39 Interview with a male deputy, Kaliningrad region. Interview with a female deputy, Krasnodar territory. 41 Interview with a male deputy, Rostov region. 42 Information from the Ministry of Education of the Russian Federation. Materials of the Academic Expert Seminar “Equality of Genders in Russia: Laws, Policies, Practice,”held in Moscow on February 26, 2002. 43 Focus group, Tula region. 40 168 Also: I think that the only right actually observed is the right to general high education.44 However, the field of education is not totally free from discrimination against women. The situation is at its best in the institutions of general education. Still, it is important to note that, contrary to Article 10.c of CEDAW, authorities in some regions support schools that practice segregated education. The number of such schools remains small, but the practice persists. For example, in Syktyvkar, Komi Republic, a gymnasium (specialized magnet school) for women, according to its teachers, is significantly inferior to regular schools in the area. Y. Borisov, Chairman of the State Council of the Komi Republic that sponsors the female gymnasium of Syktyvkar, declared at a meeting at this school, “The important thing is how many of this school’s graduates got married and not how many of them became university students.” Minister of Education of the Stavropol territory “is actively promoting segregated education at high schools, with patriarchal social roles integrated in the process of education and general upbringing.”45 It is mostly boys, though, that do not attend general schools. In Novocherkassk, Rostov region, girls accounted for only 20—35% in this category of children. Some ethnic minority groups are notable exceptions to this rule. In certain communities, parents do not allow girls to finish high school, guided by patriarchal views about gender roles. In Meskhetian Turk46 families of the Rostov region, for example, boys go to school until grade 9,47 after which they are supposed to help their parents at family farms, while girls only complete grade 6 or 7. Parents explain that, according to their ethnic traditions, a woman is only a mother and a housewife. The same applies, to a lesser extent, to girls from Chechen families.48 We have already shown that the proportion of women at schools of higher learning is greater than that of men. This situation is, however, laden with discrimination in the processes of admission and selecting a specialization. Still alive at schools of higher learning are concepts of gendered professions. Thus women encounter prejudice from members of entrance exam commissions and university professors when they apply to certain departments: The right to education is observed, but not in full. In some departments, young women do not have the same rights as young men. When I wanted to become a student of the university’s physics department, I was openly told that girls are not welcome to specialize in this field.49 44 45 46 47 48 49 Focus group, Stavropol territory. Focus group, Stavropol territory. The official number for Meskhetian Turk population in the Rostov region is 17 019 people. To note, complete general education is 11 years (grade 1 through grade 11). The official Chechen population in the Rostov region is 9 433 people. Focus group, Saratov region. 169 The influence of gender stereotypes is clearly manifested in those regions where most schools of higher learning are oriented toward the so-called “male professions.” In the Kaliningrad region, four of the six state institutions of higher education,50 are the Institute of Law of the Ministry of Internal Affairs, the Military Institute of Border Guards, the Baltic Academy of Government, and the Naval Institute. The authors of the regional report for Kaliningrad objectively identify this as the core reason why, contrary to statistics in the rest of Russia, the proportions of women and men among the region’s students are 33% and 67%, respectively.51 During a focus group held in this region, its female participants spoke more actively and with more conviction about discrimination against women in admission to schools of higher learning: Three years ago, my daughter became a university student. In admission, preference was given to young men. This was openly declared by the Dean.52 Also: It is a problem for girls to become university students, for instance, of the Baltic Academy of Government.53 Discrimination against women in admission to universities is also based on other considerations: I was trying to become a student of the History Department of St.Petersburg University. At the end of the entrance exams, a young man and I had equal scores. I was told that they would take him and not me, because I was likely to have children.54 Also: I faced discrimination when I became a university student. A male professor gave men higher marks because we had fewer men in our group than women.55 Also: When we were trying to become students of the Academy, competition for our field of specialization was very tough. However, there were far more female applicants than male ones. So, at the entrance exams, girls had to get two A’s to be admitted, while boys were admitted even if they had two C’s. We were told that boys had better potentials and they were to take positions of power in the future.56 In the course of their university studies, female students also encounter prejudice by professors: 50 It is state schools that provide free education. Data for the 2000/2001 academic year. 52 Focus group, Kaliningrad region. 53 Focus group, Kaliningrad region. 54 Focus group, Pskov region. 55 Female student of the Rostov State University. Data from a poll conducted in 2001 by the “Women of Don” NGO. 56 Female student of the Novocherkassk Academy of Melioration. Data from a poll conducted in 2001 by the “Women of Don” NGO. 51 170 In our department, many professors, both male and female, dislike female students. I study electrical engineering, and this field is considered purely male. And even young female professors who graduated from the university with a degree in this field mistreat girls. They clearly give girls lower marks if compared to boys.57 Also: At the Journalism Department of the Rostov State University, in my class, we have about 70 girls and 10 boys. Male professors tell us that journalism is not a women’s job as it requires strength and a profoundly analytical mind, as if those were exclusively male features.58 As we have already mentioned above, stereotypes influence not only admission and academic results, but the selection of the field of specialization as well: Personally, I think that central to women’s rights is the right to choose any profession. For instance, at our medical school, girls are not allowed to choose surgery as their field of specialization.59 Also: At medical school, as far as graduate studies are concerned, in most fields of specialization boys are preferred over girls. For fields like surgery, only boys are accepted. Girls are generally viewed as future general practitioners.60 THE RIGHT TO EQUAL OPPORTUNITY IN ACCESS TO EMPLOYMENT Under the new Labor Code of the Russian Federation adopted in 2001, “every person shall have equal opportunities to exercise his or her labor rights. No person may be restricted in his or her labor rights or freedoms or receive any privileges irrespective of sex, race, color, ethnicity, language, origin, property or social status, position, age or any other circumstances unrelated to his or her professional skills.”61 However, at present even official documents contain evidence of a broad practice of discrimination against women in employment: “approximately every executive or chief official points out that for purposes of employment, preference is given to men.”62 In the course of interviews conducted in 20 regions of Russia in the given monitoring effort, numerous employers admitted discrimination against women in employment and openly declared that if they had a position opening and more than one competent women claimed it, they would give 57 Female student of the Southern Russian Technical University. Data from a poll conducted in 2001 by the “Women of Don” NGO. 58 Female student of the Rostov State University. Data from a poll conducted in 2001 by the “Women of Don” NGO. 59 Focus group, Rostov region. 60 Female student of the Rostov State Medical University. Data from a poll conducted in 2001 by the “Women of Don” NGO. 61 Article 3 of the RF Labor Code, “Prohibition of Discrimination in Labor Relations.” 62 Concept of Improving the Situation of Women in the Russian Federation (as approved by Resolution #6 of January 8, 1996 of the RF Government). 171 preference to married women in the 30—35 age bracket with children older than five years of age. For example: In employment, I look at professional skills in men and at age in women.63 Virtually all female participants in the focus groups conducted in the regions either had faced discrimination in employment themselves or heard about such instances from their female friends or acquaintances, and demonstrated firm conviction that discrimination against women in employment exists: The general feeling is very strong that the place for a woman is in the kitchen. We do not have equal employment opportunities with men; they always have the advantage.64 The data collected in the course of the monitoring effort reveals the driving factors of such discrimination. Russian society has retained the old stereotypes of “male” and “female” professions, fields of specialization, and positions. In many cases, employers reject female candidates and hire male candidates on this basis. Among government-operated organizations, this applies most to the army, law enforcement agencies, and health services: Girls are not admitted into higher military schools. They cannot enlist in the police. For a long time, the police department has been posting ads inviting men under 31 to apply. It appears that men are not interested, and women are not admitted. 65 Also: I tried to get a job in Rostov as a nurse at a military hospital where salaries were higher than in civilian hospitals. I was denied the position and told that only men are accepted. Why? I can give injections at least as well as men can, possibly even better. A friend of mine dreamed of becoming a surgeon. In the end, she did become a surgeon. However, it was far more difficult for her to reach her goal than it was for any guy, although her knowledge was far superior.66 Such discrimination also occurs in other fields, although less frequently: Certainly men have an advantage. Even in our Committee [the Regional Government Committee for Physical Culture and Sports] they prefer men, since they believe that men know more about sports67. Stereotypes about male and female jobs mar entire professional fields: With us technicians, there is a distinction between men’s work and women’s work. And if I am more interested in a “men’s” position, it cannot be taken for granted that I will get it.68 63 64 65 66 66 67 68 Regional Report “Discrimination against Women in the Tatarstan Republic—2002.” Focus Group, Stavropol territory. Ibid. Focus Group, Rostov region. Focus Group, Tatarstan Republic. Focus Group, Pskov region. Focus group, Moscow. 172 Also: When he needed to hire someone to work in the archives, our department head [male] said that we’d better get a man. We asked him why. No reply. And certainly, the computer programmer can only be a man.69 Also: I know that as a person working the field of engineering I will always come across situations in which men will initially enjoy preferential treatment.70 Characteristic of private businesses is the widely spread practice of specifying the sex of the would-be employee in vacancy ads: Managerial positions are more often offered to men. Even in the ads they write: looking for a male manager.71 When private businesspeople deny jobs to women, they are often guided exclusively by their own views and prejudices. In most cases, they give no explanation to the rejected female candidates. Instead, employers sometimes express their sexist view quite openly: I am the owner of this company, and that says it all. You know, decisions fall on the guy who pays the bills. Women are life’s flowers and, with my money, I want to make sure there are only young and pretty girls in my company.72 Moreover, if a man and a woman both want to take a job at a facility traditionally staffed by women (where men, as a rule, would not work because of low salary options or because of the widespread conviction that it is not a “man’s job”), the male applicant would still receive preferential treatment: Schools prefer men, as schools are mostly staffed by women and men are clearly in short supply.73 Also: If a young man and myself are considered for the same position at school, given we have similar degrees and academic records, they would be more willing to take him and not me.74 In particular, discrimination by employers against women under 30 years of age and women with small children paint a telling picture of the situation of women in Russia as a whole. Plus, these two groups of women face considerably more discrimination than other groups. Russian law provides for a range of social benefits and allowances for pregnant women and mothers of small children; some provisions place the responsibility for these benefits and allowances squarely on employers. However, trying to cut costs in the currently unstable economic environ69 70 71 72 73 74 Focus group, Karelia Republic. Focus group, Moscow. Focus group, Novosibirsk region. Regional Report “Discrimination against Women in the Tatarstan Republic—2002.” Focus group, Tula region. Focus group, Krasnodar territory. 173 ment, owners and managers of private businesses deny jobs to women who have small children or are likely have them in the future. Naturally, [a young woman] will not be hired. She would take leaves to take care of her sick baby, and generally the management will have to think about making arrangements for the children’s summer vacations, take into account her family life.75 Employers admit that in order to protect themselves against problems of this kind they ask women to fill in a questionnaire that includes such fields as “married/unmarried,” “children/no children.” Those questions are also asked during job interviews: My sister tried to get a job when she was in the third month of pregnancy (at that point, it wasn’t visible). She was immediately asked whether she was married. When she answered in the affirmative, she was told, “Sorry, ma’am, we do not need these kinds of workers.”76 Also: Yelena N., an employee at a co-generation power plant in the Southeastern administrative district of Moscow, was surprised that when she was applying for her position she was asked to fill in a questionnaire that contained, among others, a field asking her to indicate whether she was “married, unmarried, [or] divorced” next to the field asking if she had children. Yelena wondered what the practical difference was between “unmarried” and “divorced.” The Chief of Human Resources told her, “A divorced woman is not likely to want to get married again soon, unlike an unmarried woman, so she would give more of her time to work rather than to her family. She won’t need to take leave to care for her sick child, either.” As we see, employers consider a set of factors, including whether the woman is a divorcee and whether she has children. Clearly, preference is given to divorcees with no children over single or married women.77 Since the public sees ages 20—30 as the years in which women are most likely to get married and give birth, employment discrimination against women in this age group is widespread. Notably, both employers and working women are sure that private companies are unjustly burdened with obligations to working women, for which, they say, should be entirely the responsibility of the government: The government is trying to unload these problems onto businesses and private people. There must be a national policy in place to take care of these things.78 Pregnant women are most disadvantaged when looking for work: When you are pregnant, it is impossible to get a legal and permanent job, I know it from my own experience. I had to cheat to get a job and hide my condition.79 75 76 77 78 79 Focus group, Karelia Republic. Focus group, Rostov region. Regional Report “Discrimination against Women in Moscow—2002. Focus group, Karelia Republic. Focus group, Penza region. 174 Frequent sick leaves and possible maternity leave (which often may result in a loss of certain professional skills) are the main reasons why women are less successful in the labor market. These reasons are listed by interviewed employers among “shortcomings” of female employees. As a result, when an employer has to make a choice “between a man and a woman, the man gets the job, because he will not at least take a maternity leave.”80 The practices of hiring women informally and adding a clause in women’s inoficial contracts forbidding pregnancy for a certain period of time are also becoming widespread . Even governmental agencies frown upon young women in hiring, and a private business would never hire a young woman. If they were to hire a woman, they would only do it unofficially, without documentation, so that they could fire her at any time.81 Also: My elder sister works. She recently got married and she was warned that she should wait to have children since the [her employers]y had invested in her, trained her, promoted her and things like that.82 Also: The first questions when I came to ask for a job were, “Are you married?” “Are you pregnant? When do you plan to get married and give birth?”83 Also: It feels weird that in a job interview they would inquire about your kids’ ages, about their health, whether they are often ill. You have to, as it were, justify yourself, tell them that no, the kiddies are not ill that often, and if they are, we have someone to look after them.84 Also: My sister graduated from college, a month after that she got pregnant and got a job in a private business. She had to go and work for a private business after she was rejected by a municipal company. I think that there was no formal contract between her and her private employer.85 Also: A female participant in the focus group noted a recent case with her close friend, she had been asked to sign a contract that contained a provision that she could not give birth five years from the date of the contract.86 80 81 82 83 84 85 86 Focus group, Moscow. Focus group, Stavropol territory. Focus group, Murmansk region. Focus group, Kaliningrad region. Ibid. Focus group, Rostov region Regional Report “Discrimination against Women in the Komi Republic—2002.” 175 Also: Recently, the following violations have become more frequent: the employer offers an employment contract containing a provision that there will be no pregnancy within three years87. Another female participant in the focus group noted a recent case in which her close friend had been asked to sign a contract that contained a provision prohibiting pregnancy five years from the date of the contract.88 It should be noted that female employers, contrary to the popular opinion, hardly differ in this regard from their male counterparts. Female employers interviewed in the course of the monitoring effort also showed no readiness to comply with legislative requirements regarding benefits and allowances to pregnant women and mothers, albeit admitting that such treatment constituted discrimination: I want to speak from my perspective as a boss. Pregnant women and women with little kids are a problem for employers. On the one hand, I am angry that the rights of this category of women are violated, but, on the other hand, I myself would not employ a pregnant woman.89 Also: If it is a private company, then it would most likely use the same type of employment contract as I use, one with no paid leave and no paid sick leave. If you get a guaranteed job, then the company would make payments to the pension fund, payments toward sick leaves and things like that.90 Also: My husband does not want to employ women with little kids, especially single parents. Who would do her job? There are no back-ups. We hired one single woman with a little kid on the condition that her parents will provide care to the kid, since the kid goes to nursery school and will probably be sick often.91 In the view of the drafters of the Concept of Improving the Situation of Women in the Russian Federation: The presence in labor laws of such provisions as the prohibition of work at night; restrictions on many different types of work; limitations on working hours, restrictions on travel, limitations on overtime; the general orientation of law toward protection of a working mother rather than a parent irrespective of sex; and the lack of a well-thought-out system that differentiates between the needs of different categories of women in terms of social protection all undermine the demand for female labor and enhance the likelihood of discrimination against women.92 87 Regional Report “Discrimination against Women in the Kurgan Region—2002.” Regional Report “Discrimination against Women in the Komi Republic— 2002.” 89 Focus group, Penza region. 90 Focus group, Moscow. 91 Focus group, Smolensk region. 92 Concept of Improving the Situation of Women in the Russian Federation (as approved by Resolution #6 of the RF Government dated January 8, 1996). 88 176 The Russian labor market as a whole discriminates against persons of preretirement age. Women over 40 are particularly badly affected. According to data provided by monitors from Karelia, “in the total scope of registered unemployment, the share of pre-retirement age women is higher than that of men of the same age (17% and 12%, respectively).”93 Research by the Moscow Center for Contemporary Political Studies confirms that “women over 40 years of age are more likely to be rejected by employers than men in the same age group.”94 Women’s rights activists from the Irkutsk region include this group among those “particularly vulnerable in the labor market.” In their view, the “privilege” granted to women by the government of an earlier retirement age than men’s actually presents an additional employment problem for those women who have great professional potential, willingness to work, and financial need.95 Thus, women can realistically compete with men in the labor market only in the 30—40 age group, and only if they are married and have relatively grown-up children: Women reach a high professional level by the age of 30 or 40; children who attend school are not ill that often.96 Also: Normally, a woman of this age [35 years] already has children, and these children are not infants and do not fall ill too often. In other words, the woman does not have to stay home with them on sick leave. She is more energetic and more able to do the work.97 Many women clearly perceive denial of a job as an act of discrimination: When a friend of mine was negotiating a good and very promising job, she was asked to stay single for another three years or at least rule out pregnancy. The alternative, if she planned to have a baby, was to reject this position. I think this is discrimination. Sure it is.98 Also: This is a violation of rights. It is almost impossible for a pregnant woman to find a job. I can give you lots of examples. A woman with a little kid cannot find a job either. No-one wants a worker like this, your kid is sick — no-one wants you.99 Interestingly, focus groups revealed that the same set of prejudices about the social role of women, specifically, that they are more responsible for family life than their careers, was generally held by women as much as by men. Some of the female participants of focus groups were convinced that it did not make sense to fight for equal employment rights. If you look into it, there can be no equality, because of the conditions of being a woman: women must have kids, they must devote a lot of time to 93 94 95 96 97 98 99 Regional Report “Discrimination against Women in the Karelia Republic—2002.” Regional Report “Discrimination against Women in Moscow—2002.” Regional Report “Discrimination against Women in the Irkutsk Region—2002.” Interview with an employer, Altai territory. Interview with an employer, Murmansk region. Focus group, Smolensk region. Focus group, Rostov region 177 their kids’ up-bringing. As a result, they can devote less time to work if they cannot afford a baby-sitter. All in all, what a woman is all about is having babies and raising them, and there is no way around this. So, employers prefer to hire men, and it is clear why: a man hardly ever goes on sick leave, he does not have to stay at home with the kids; these are women’s duties. Woman has been put in a very difficult position by Nature herself.100 Also: I think that when women really want to achieve something, there occurs natural selection. Those who are capable do get what they want, and there is no infringement on women’s rights.101 But the opposite opinion, that the denial of jobs in traditionally male fields to women is discrimination, was also evident in interviews and focus groups: In traditionally male fields, women are discriminated against. For instance, how many female generals or colonels do you know?102 The low level of legal awareness among women often means that they sacrifice package of social benefits granted to them by law in order to improve their competitiveness on the labor market: Frankly, I have no right to be sick, and it would be a problem to go on sick leave to take care of my kid. I also had to cut short my maternity leave. I only spent a year at home with my baby. I am lucky I have a friend at work. She called me and said that I had to come to work or I was going to lose my position, that they could not afford to keep empty desks in the office. So, I had to find a nurse and return to work, since everybody in my family works and no one is available to look after my child.103 Also: Woman is now in a situation that she will work whether her kid is sick or not. She will take care of the child illness issue herself, without getting her employer involved, provided, of course, that we are talking about a good and well-paid position.104 Notably, a woman who puts her work first is seen in a negative light by her peers: We have spent 75 years fighting for emancipation, for equal rights with men. So, we have gradually raised ourselves to the level of I do not know what… A working animal.105 Also: I have a friend, she has a high salary but no family, she has given herself entirely to her career.106 100 Focus group, Moscow. Focus group, Penza region. 102 Focus group, Smolensk region. 103 Focus group, Pskov region. 104 Interview with the Chairperson of the Regional Labor and Employment Committee of the Legislative Assembly. Rostov region, 2002. 105 Focus group, Rostov region. 106 Focus group, Krasnodar territory. 101 178 Also: As a rule, women who are preoccupied with their career have family problems or no families at all, or they are “iron ladies,” but they are not many.107 Faced with multiple difficulties, some women look for jobs that pay under the counter or become housewives. I was rejected twice. They would not accept me because I had three children, one of whom was still in nursery school. Even friends denied me jobs as assistants in their shops. But I have no hard feelings about it because I put my family first, and it would have been difficult for me to switch my attention to work and take less care of my family. This is simply not my thing, as they say. What I am doing now is handicraft at home, there is some demand, and I’ve got customers.108 Virtually all interviewees pointed out that it would be impossible to prove a violation of labor laws, as employers almost never specify the reasons behind employment denials: A friend of mine, a medical doctor, was denied a job because she had a little kid, but they told her they hired someone with better qualifications, while actually they had given the job to a young man who had just graduated from college.109 Also: Employers provide no grounds when they reject women. They simply say they are not interested.110 Also: As a rule, there will be veiled violations. In other words, no one would tell a woman that the reason why she is rejected is her recent marriage or the likelihood of her taking leave to look after her child.111 At present, there is no record of women filing suits against employers for discrimination in the hiring process. Though there are legal opportunities to raise such complaints, they are largely inaccessible. For example, Article 64 of the RF Labor Code expressly prohibits denying jobs to women in because of pregnancy or children. In addition, the law requires that, upon request of the job applicant, the employer must state the grounds for denial in writing; and such denial can be contested in court. However, Article 64 says nothing about the procedure that the job seeker should follow to obtain such a written denial. According to women’s rights activists from the Kaliningrad region, employers often deny ever having met applicants that demand written denials, and it is very difficult to prove otherwise. The regional lawmakers that we interviewed were divided on this issue. Some denied the existence of such discrimination, saying “if a woman has the requisite professional skills, there are no obstacles to her getting a job and a respectable salary.”112 Others disagreed, pointing out that despite the 107 108 109 110 111 112 Interview, Novosibirsk region. Focus group, Smolensk region. Focus group, Altai territory. Interview with an expert, Kurgan region. Interview with a female deputy, Smolensk region. Interview with a male deputy, Krasnodar territory. 179 high quality of education available to women, “at present, if a woman loses a job, she would have a hard time finding another. Only friends can help. She would have to accept a low-qualification, low-paying job.”113 The monitoring effort revealed that two regions of the Russian Federation had made attempts to reverse the situation by adopting regional legislation aimed at reducing the number of violations of women’s labor rights. Namely, we can refer to the resolution “On Establishment of Rates of Employment for Persons Requiring Particular Social Support” by the Governor of the Tula region and the resolution “On Establishment of Rates of Employment and Granting Tax Exemptions to Organizations Employing Persons Requiring Particular Social Support” by the Government of the Udmurt Republic. Both documents list the most vulnerable groups of women (in particular, single mothers and mothers with three or more children) among persons requiring ‘particular social support.” Women rights activists from Udmurtia report that the relevant resolution has had a significant effect on the situation in the Republic. According to women’s rights activists from the Tula region, however, “it takes a lot of insistence to get a job based on this resolution, since employers would use any pretext to reject you.”114 THE RIGHT TO EQUAL OPPORTUNITY TO PROMOTION The situation in the sphere of public service,115 where women, despite constituting the majority of public servants, hold only a small share of highlevel positions, speaks for itself, not only concerning the right to participate in governance (Article 7.b of CEDAW), but also concerning the right to promotion (Article 11.c of CEDAW). There are no detailed statistics or in-depth research about the number of women in managerial positions. The given monitoring effort could not and should not try to fill this gap because it had different goals and objectives. Nevertheless, the information collected by the regional monitors leads us to conclude that women’s prospects for career development in the private sector does not differ qualitatively their dismal prospects for promotion in public service. For example, in the Altai territory, of fifty factory and plant general managers two are women; in banking institutions, of top managers, only one is a female; in the eleven major private companies, all general managers are men; and in the fields of architecture, road construction, agriculture, communications and transport, all leaders are men. According to the Trade and Industry Chamber of the Penza region, there are no women among major companies’ top managers. And according to the information provided by the State Statistics Committee of the Rostov region, there are no women executives in any major enterprise or organization (those employing more than 4 000 people). 113 Interview with a male deputy, Rostov region. Regional Report “Discrimination against Women in the Udmurt Republic—2002” and Regional Report “Discrimination against Women in the Tula Region,” 2002. 115 See the section “Right to Participate in Government and Public Service.” 114 180 The opportunities for women in the media industry are significantly better. In the Altai territory, of eight newspaper editors-in-chief, four are women; in the Smolensk region — seven out of fifteen. In the Rostov region, women are in charge of half of 50 regional and municipal periodicals, as well as 14 out of 42 TV and radio companies. On the whole, though, focus groups and interviews confirm that women do not enjoy the same career development opportunities as do men. One of the interviewed female legislators clearly pointed out that limited opportunities for female promotion are the main reason why there are no women in significant posts: Women occupy secondary, insignificant positions because they are not promoted, they are given no way upwards.116 This sentiment was echoed in other responses, too: That is the situation. All the work is done by women, but everywhere bosses and directors are men. And not because they are more intelligent than women, but because they are men.117 Also: Top managers are normally men, women can hardly make their way up.118 Also: Women work, men supervise.119 Also: It is more difficult for a woman to enjoy her rights if she wants to become a top manager of a state-owned enterprise or a private business.120 Gender stereotypes seem to be the primary cause of discrimination: An opinion has developed in this State that men are the ones who are entitled to leading positions.121 From the interviews conduced with male legislators, we get a rough impression of men’s discriminatory attitudes towards women seeking promotion: The situation with female career advancement is more complicated, women are more emotional, vindictive, stubborn. Not all men agree to have a female as their second-in-command.122 Also: Women are assistants.123 116 117 118 119 120 121 122 123 Interview with a female deputy, Krasnodar territory. Interview, Altai territory. Ibid. Ibid. Interview, Penza region. Interview, Kaliningrad region. Interview with a male deputy, Republic of Karelia. Interview with a male deputy, Kaliningrad region. 181 Still another interview attests to the centrality of discrimination in management to the lack of promotion opportunities for women: Three people were hired at the same time and one of them was a girl. This poor creature… was struggling against all that for a year… because the two young guys hired together with her… would go abroad, close contracts, enjoy interesting work, but she was confined to her desk handling papers. And no matter how many times she tried to prove to and convince [her superiors] that she was worth something, she never could. She left the office, saying that she was tired of all that.124 Of course, there are often other circumstances that motivate discrimination against women in career advancement: I was about to be promoted but when it became clear that I was in my fourth month of pregnancy, the promotion was immediately called off.125 Inequality in promotion also manifests itself in other forms: It happened at a legal consultancy firm. Two young men and a girl were hired to work there. And the girl… was made to play an “errand-boy” despite the fact that officially she was a legal consultant. When pay-day came, it so happened that she was paid less [than the men]… She was really enraged.126 Many women interviewed within the given monitoring effort to a certain extent regard lack of equal access to promotion as a cause behind unequal pay: In terms of the wage/position relationship, men and women are paid the same, but it is men who monopolize managerial position. Women are never offered such positions.127 Also, it should be noted that women are held back by promotion not only by prejudiced men, but by prejudiced women as well: The reverse trend that we face today is that a woman should be neither a mother nor a wife… Indeed a wife is a woman in the house who takes care of a home… But our education emphasizes career… I have lots of young friends who see nothing but work, their kids stay with babysitters, everything is OK with them. They enjoy nice jobs, but their families break into pieces.128 Also: I believe that women must not strive to win positions normally occupied by men unless they are driven by income motives.129 124 125 126 127 128 129 Interview, Interview, Interview, Interview, Interview, Interview, 182 Moscow. Kaliningrad region. Moscow. Republic of Karelia. Moscow. Rostov region. THE RIGHT TO EQUAL PAY According to the Moscow Center for Gender Studies, “those groups and categories of households that have been singled out as running the greatest risk of falling into poverty suggest that, in light of today’s economic situation in Russia, we can speak about a feminization of poverty.”130 According to the Sector of Personal Incomes of the Department of Personal Incomes and Standards of Living of the RF Ministry of Labor, “the greatest poverty rates (as percent of the total number of persons in the respective gender/age group) have been recorded among children aged seven to 15 years (41.9%), and women aged 31 to 54 years (36.4%).”131 Unequal remuneration is one of the key engines driving the feminization of poverty. In 1998, the average monthly salary for women was below 70% of that for men.132 This is confirmed by statistical data gathered within the given monitoring effort by women’s organizations throughout Russia. The figures below are cited from their regional reports. In the Irkutsk region, women earn 39% less than men on the whole in organizations involved in general commerce in the region, men’s salaries are 2.5 times as large as women’s. In spite of the fact that in the Karelia Republic women account for more than a half of all employees, their proportion among those persons who have super-incomes, or incomes that are two—three times the average income, is extremely small. In the Novosibirsk region, men’s average monthly pay exceeds women’s by 41.5%; in the Stavropol region, by 45%. In 2001, the average monthly salary of women employed by large and medium-sized companies of the Udmurtia Republic was 2 067.6 rubles, while men received 3 375.90 rubles. In other words, men’s salaries are on average 1.6 times greater than women’s in the region’s large and medium-sized companies. According to responses provided by women working for municipal authorities in the Rostov region, 52.63% of women had encountered a moment where a difference between men’s and women’s salaries was clear in their in their respective towns and districts. Legislators and members of relevant legislative committees, while admitting that there exist violations of women’s right to equal pay, attribute those violations to different public expectations of men and women: Such a situation [in which salaries of men are higher than those of women] is attributed by T. Portnova, Deputy of the Moscow City Duma, to our society’s mentality and culture, in which men are measured with a different yardstick than are women. She calls it ‘patriarchal culture.’ “Women face difficulties in getting jobs, getting paid, getting promoted. 130 Economy and Social Policy: Gender Dimension. (Moscow: Academia, 2002). M. Bayghereyev, Chief of the Personal Income Section of the Personal Income and Standard of Living Department of the Ministry of Labor of the Russian Federation, “A Review of Russian Poverty: Causes, Features, Measuring Methodology,” Man and Labor (#8, 2001). 132 Russian State Statistics Committee. 131 183 Basically, women are looked at as less promising workers than men, less promising politicians, worse managers than men.”133 Some said that in actuality there is little to no discrimination, and if there are some individual cases, they only occur in the private sector. I haven’t heard anything about discrimination on the labor market. If a woman has the relevant professional skills, there are no obstacles to her employment and respective compensation.134 Also: If you ask me if there is discrimination in terms of compensation, my answer will be no.135 Also: If I were a manager, why would I pay a woman more? In governmentowned companies, men and woman in equal positions are compensated equally.136 One reason why women are often paid less than men is the intensive process of salary differentiation in the post-reform period driven over the past ten years by rapid growth of salaries in sectors with high export potential (in particular, the fuel and energy sectors) and in the financial/credit sector. Salaries in social sectors (health care, education, culture) and in agriculture remained at lower levels. Women’s regional groups confirm this finding: In terms of personal incomes, women are far below men. Typically, women are employed in the lowest-income sectors of the economy (education, health care, social sphere), in low-income businesses (shuttle traders, vendors in open-air markets), or domestic work. For instance, 23 000 social workers are employed in the Rostov region, and 85% of them are women.137 Also: Salaries exceed the average wage in sectors that are seen as traditionally men’s sectors, such as industry, telecommunications, construction, transportation. Women’s sectors, such as culture, health care, education, retail trade, and catering, pay salaries that are lower than the territory’s average salary.138 Also: In 2001, monthly salaries paid by large and medium-size companies were 2 067.60 rubles for women and 3 375.90 rubles for men. In other words, men were paid 1.6 times more than women per month. The range of salaries in the same year in “women’s sectors” was from 1 378.90 rubles in primary and high education to 2 932.00 in telecommunications. The 133 134 135 136 137 138 Regional Report “Discrimination against Women in Moscow—2002.” Interview with a male deputy, Krasnodar territory. Interview with a female deputy, Smolensk region. Interview with a member of a relevant legislative committee, Rostov region. Regional Report “Discrimination against Women in the Rostov Region—2002.” Regional Report “Discrimination against Women in the Stavropol Territory—2002.” 184 women’s salary as a proportion of men’s salary ranged from 60.6% in transportation to 81.3% in culture. Only in agriculture and in forestry this proportion stood at 100.3% and 103.8%, respectively. Thus, sectors dominated by women employees turned out to be the lowest-paid sectors. Men’s jobs, especially in the mining industries, are not only paid better, but they are also qualitatively different. They provide the worker and its dependents with a living wage, while this is not the case in women’s jobs. For instance, in 2001 in our Republic [Udmurtia] men employed in geology and exploration were paid 8 170 rubles, or the equivalent of 6 living wages per month, while women in education received an average of 1 378.90 rubles per month, roughly equivalent to one living wage. The situation is very similar in health care and culture. As regards agriculture, wages there do not even constitute a living wage.139 The authors of the Macroeconomic Review of Feminization of Poverty in Russia note that professions that employ women are often related to domestic responsibilities (raising children, caring for the sick, etc.), are less prestigious and offer lower salaries.”140 In the opinion of female participants of the focus groups conducted within the given monitoring effort, women’s salaries are normally significantly lower than their husbands’ salaries. Below is a typical comment: A job in a library is also not taken seriously by men. But personally I am conscious of the fact that if I had to live alone I would not be able to survive on my salary.141 We must emphasize again the enormous effect of popular, patriarchal stereotypes. Many female participants in the focus groups agreed that a man must be paid more because he has the responsibility of providing for his family. They also believed that for a woman a job is merely an opportunity “to get out of the house” or make a small contribution to the family’s budget. Many women have to work, and what you get as a result is a poorlylooked-after home. And the kids get too little attention. Sure, women work for money, for the sake of an extra penny in the family’s budget, because you cannot live on a single salary. If we were better off, then surely I’d focus on our home and kids.142 Also: Woman doesn’t work just to earn a salary. She needs to work in order to get out of her family, because when woman stays at home surrounded by her children, she has only a broom, a duster, and dirty dishes. A human being grows dumb in such an environment. A Woman should have a job, even if she has plenty of money. She should work a little, just a little, for herself, for her own sake. To develop as a person, to avoid growing dumb.143 139 Regional Report “Discrimination against Women in the Udmurt Republic—2002.” “Feminization of Poverty in Russia,” Macroeconomic Review of Feminization of Poverty in Russia (in the Collection of Reports for the World Bank). 141 Focus group, Kaliningrad region. 142 Focus group, Saratov region. 143 Focus group, Novosibirsk region 140 185 At the same time, some female participants of the focus group recognized the problem of unequal opportunities for women in the workplace: In this case she [woman] cannot hope for promotions or a decent salary. Working like this means she has a low-salaried and, as it were, “lowgrade” job that does not enjoy a lot of popularity.144 In many cases, a situation arises in which the employers sets a woman’s salary at a lower level than a man’s for similar positions only because they are following a deeply-rooted tradition: Our director saw it as perfectly normal for a man’s salary to be higher, because a man is a man, he has to support his family. And the possibility that a woman may live alone, may support her kids, her husband, well, none of these are given consideration.145 Also: Most employers when they pay men more than they pay women justify it by saying that a man is a provider for his family, so he must get more than a woman, and the financial or marital situation of women are given no consideration. She could well be the only provider in her family and raise her kids alone, with no support from their father.146 Also: Ms. N. got a job as head of marketing in a private business. Her monthly salary was 8 000 rubles. Three months later, she learned that the salary of the head of economics was 13 000 rubles. Apart from this, bonuses paid to Ms. N. and her male colleague were also unequal. Ms. N gets 40% of her salary as a bonus; the head of economics gets 100%. Ms. N asked the management to explain the reasons for such unequal payments. What she got in reply was, “The head of economics is a man! And although your performance is in no way inferior, there is no way that your compensations can be leveled out.”147 Also: I ran across this when I worked as a cook in the meat kitchen at the Don Institute of Agriculture. Working next to me was a male cook. He would work for a few hours and leave. I had to work from six in the morning till eight in the evening, and I received a lesser salary than he did. I raised this issue, and was told in reply, “He is after all a man, and you are only a young girl.”148 Very interesting in this respect is the opinion of the CEO of a business company in Saratov: There is discrimination even in terms of remuneration. I employ two managers, a man and a woman. I set a salary of $150 for the man, and $100 for the woman. It was only later that I sat down and thought that something must be wrong about it. I tried to discuss this with my chief accountant, to the effect that we must have made a mistake, but my 144 145 146 147 148 Focus group, Novosibirsk region. Ibid. Regional Report “Discrimination against Women in the Novosibirsk Region—2002.” Regional Report “Discrimination against Women in the Saratov Region—2002.” Focus group, Rostov region. 2002. 186 chief accountant said, why, he’s got a family to feed! I say, their responsibilities are the same, why should we pay the woman less? So I gathered my courage and leveled their salaries, and now I see that the woman adds more to my business.149 Some employers set lower salaries for women openly stating that a woman devotes more of her energy to her family and children and thus gives less of her time to work as compared to a man: Discrimination does exist, especially against women who have infants. In some cases, men are paid significantly more than women who do the same job.150 Also: It was seen as perfectly normal that a woman has no rights at work. She is often demoted to low-level positions with low salaries, because people in these positions cannot take leave to care for their sick children.151 Also: The way [lower pay] is explained is that a woman does not perform as well because she keeps thinking about her kids and her family, and she refuses to travel work overtime, or show up for work at weekends.152 In some cases, people view employing women as a cost-saving opportunity. Over the course of the monitoring effort, several employers from Irkutsk admitted, that “the primary reason to employ women is the opportunity to pay them less.” This was reaffirmed by over a half of all employers interviewed in Irkutsk.153 In Moscow, a similar trend has been observed: Anton, the CEO of a small business engaged in furniture manufacture, says: Why pay women more if I can pay them less. Everybody does this.154 In organizations that do not give equal compensation, the practice is seen as perfectly normal: My husband and a female employee have equal positions, but he is very unhappy when she gets paid the same amount, which occurs very seldom.155 Many female participants in focus groups noted that, since men are seen as better workers, men are increasingly being hired to fill high-salaried positions. Women’s organizations from the Karelia Republic and the Irkutsk region spoke about deliberate displacement of women from highly-paid positions: 149 In the Interest of All Russia. Materials of the workshop “Interaction between Authorities and Nongovernmental Organizations in the Saratov region. Acting Together: Cooperation in Conceptual Development of a Law on Equal Rights and Opportunities of Men and Women” (Saratov: 2001, pp. 220—224). 150 Interview with a member of a relevant legislative committee, Kurgan region 151 Focus group, Krasnodar territory. 152 Regional Report “Discrimination against Women in the Stavropol Territory—2002.” 153 Regional Report “Discrimination against Women in the Irkutsk Region—2002.” 154 Regional Report “Discrimination against Women in the Moscow—2002.” 155 Focus group, Karelia Republic. 187 Even in such sectors of the economy as health care and social security, where men account for only 13% of the total employees, women’s salaries stand at 92% of what men get. These figures show which positions are held by women and which by men. Normally, the position of Head Surgeon at a hospital is held by a man. Lower down the ladder in terms of the status and the salary, most employees are women. Men are doctors and junior medical staff — it is almost impossible to imagine men filling positions like cleaners or kitchen workers. The situation in the other sectors is very much the same. The more money in a sector, the fewer women are in managerial positions there. These facts paint a picture of what we can call “lawful” discrimination.156 Also: Salary differences between similar positions in different sectors of the economy have always existed, and they are based on labor consumption standards embedded in calculations of tariff rates and salaries. However, if the economic situation changes in a way that salaries in a sector grow considerably, there occurs gradual displacement of women by men in such a sector. Men, as preferred workers, are employed in sectors that have greater growth prospects and higher technological levels.157 In addition, as noted by women’s rights activists from Irkutsk: Women prefer to work for government-operated entities, where there are paid sick leaves, child support payments, paid annual leaves, guaranteed job security for three years after giving birth, and set working hours . Wishing to stay socially protected, women have to put up with low salaries.158 Women’s rights activists from Smolensk identify low-salary job opportunities for women as the only warranted way to receive privileges and social guarantees: In the city of Smolensk, a woman can expect to find a low-salaried job at the city administration, where she will be able to formally get a maternity leave in accordance with government regulations. Non-prestigious and low-paid positions (nurses at kindergartens, high school teachers, medical staff at government-operated clinics and hospitals, municipal bus drivers and fare collectors, etc.) are normally retained by women after they go on maternity leave.159 However, female participants in focus groups insist that in this regard a woman simply has no choice in most cases. It is common knowledge that women stay unemployed for longer periods of time than men, and women tend to be more willing to accept jobs for which they are overqualified: I am sure that women have to accept low-paid jobs that men are simply not interested in. To give you a specific example, there are street car drivers. I know that men and women are paid the same for any given 156 157 158 159 Regional Report “Discrimination against Women in the Karelia Republic—2002.” Regional Report “Discrimination against Women in the Irkutsk Region—2002.” Ibid. Regional Report “Discrimination against Women in the Smolensk Region—2002.” 188 distance. But in kindergartens, only women work for a salary of a nurse or a teacher, which is 400—600 rubles.160 Also: In terms of remuneration, there also are latent violations of women’s rights. You know yourself that women occupy such jobs where salaries are clearly out of line with what men come to expect.161 During the monitoring effort, it was quite frequently noted by respondents that women have to accept low-paid jobs for which men will not compete. On the other hand, in most cases, the positions in question are manual labor positions (often demanding unskilled labor). The problem here is that those positions that women can and do occupy are low-paid, while “men’s” hard labor positions are better paid and off limits to women.162 In some regions, attempts to change the situation are made only in the fields of medicine and education. However, these are only half-hearted measures that can in no way change the big picture: Our regional authorities are making hardly any decisions that will affect change. They are restating situation, while in other regions education and health care workers have gotten raises. At a meeting with heads of educational institutions in late August 2002, the Novocherkassk Mayor merely promised to consider the possibility of a raise for young specialists.163 The raise would be roughly 500 rubles for teachers in their first three years.164 Also: Take salaries, for instance. I think that in those fields where most workers are women, salaries are low. Unfortunately, nobody does anything about it. The governor made a populist move last year before the elections, increasing salaries for medical workers by 100 rubles for a certain period (four or five months). But this is not a solution. I believe nothing is really done in this area.165 Also: In the Rostov region, education employs 45 000 people, of which only 7 000 are men. In spite of the salary raise on December 1, 2001, salaries are disastrously insufficient considering the actual cost of living in the region.166 At government-operated facilities, discrimination against women in terms of pay should in effect be impossible, as salaries are accrued to both men and women in accordance with a set pay scale. Interviewed lawmakers insisted repeatedly on the importance of this system. However, in the view 160 Focus group, Smolensk region. Interview with a female deputy, Smolensk region. 162 Resolution #162 of the RF Government “On Approval of the List of Hard Jobs and Jobs Involving Harmful or Hazardous Conditions of Work for Which the Employment of Women Is Prohibited,” dated February 25, 2000. 163 M. Martynov, “A Constructive Dialogue before the Start of the Academic Year,” Novocherkasskiye Vedomosti (#35, September 4, 2002). 164 Regional Report “Discrimination against Women in the Rostov Region—2002.” 165 Interview with a male deputy, Rostov region 166 Regional Report “Discrimination against Women in the Rostov Region—2002.” 161 189 of women, even here men get more, as managers find ways to pay them something extra on top of their salaries: If it is a regular government-owned entity, salaries are equal, but in the envelopes people get individual bonuses… possibly for services of some type.167 Also: For instance, female engineers in design companies have always got less then men, for whom the management has always been able to find a possibility to throw in some extras or incentives… I believe that women get less for the same job than men.168 Also: I learned from a female acquaintance that she, a mason who was working hard at a construction site, was paid less than a male mason even though she did the same amount of work.169 Also: At one of these teenage clubs, to keep a man from leaving, the management allowed him to fill three positions simultaneously.170 The way in which discrimination manifests itself in compensation is closely related to other manifestations of discrimination against women. One of the most important factors holding back women’s salary growth is the near universal gender discrimination in promotions and in employment. This is confirmed by both the interviewed experts and participants in focus groups: There is [discrimination] in salary levels, too. Men are normally moved up the ladder far more easily. Women have chances of promotion all right, but men have clear priority.171 Also: In our business, female electricians in the fifth category do about the same as men. However, women are paid less, and they cannot advance past grade five. It is just not done at our plant.172 Also: In the army, men have higher ranks, so they have better salaries.173 Also: At the agency where I work, employers often specify in their orders that it is men that are required for well-paid jobs.174 Also: For the same job, no, I haven’t seen any [discrimination in payment], but men are offered better-paid jobs than women, yes.175 167 168 169 170 171 172 173 174 Focus group, Moscow. Focus group, Smolensk region. Ibid. Focus group, Kaliningrad region. Interview with a member of a relevant legislative committee, Karelia Republic. Focus group, Rostov region. Focus group, Altai territory. Focus group, Stavropol territory. 190 In addition, some interviewees told of cases in which employers extend privileges to men (there even were a few cases when, in the opinion of female participants in focus groups, male workers had been provided better conditions by male bosses simply because of male solidarity): When I was a legislator, my labor rights were undoubtedly violated: I was the only female deputy and I was paid the smallest salary.176 Also: I do not agree here, even if the base salaries are equal, a male boss can always find a way to mark out a woman subordinate among men. There are lots of ways, like vacations, benefits, interesting travels, educational opportunities, all those saunas, fishing events, hunting outings, paint-ball parties. We have heard enough of those. This is where men’s solidarity shows itself.177 THE RIGHT TO SOCIAL SECURITY According to Russian legislation, women enjoy the same rights to social security as do men. In addition, they are afforded a number of additional benefits, some of them related to birth and raising children. That said, the right to social security has been systematically violated on a large scale in the Russian Federation over the past ten years. It nearly goes without saying that for a variety of reasons, including the discrimination they face in the labor market and their responsibilities as mothers, women constitute one of the most vulnerable subgroups of Russia’s population. Though the last few years have seen small improvements, women’s overall situation with respect to social benefits remains unacceptable. Today, Russian women rank the state’s delivery of social services and benefits as their most pressing issue.178 Violation of the Right to Pension Benefits On the whole, according to women participants of focus groups conducted within the project, the validation of one’s retirement is an exhausting procedure associated with a variety of bureaucratic barriers. In addition, according to women’s organizations in the Irkutsk region, the size of retirement benefits provided to women are on average 30—40% smaller than those provided to men, a consequence of lesser wages and shorter employment records (which often relate to gaps in employment record caused by giving birth to and raising children). Also, incorrect registration of one’s years of employment can often makes the difference between benefits and no benefits: At our plant, where the manufacturing process is detrimental to health, women retire at the age of 45. But when I retired I discovered that one year of my tenure in harmful working conditions (during 1992—1997) had disappeared. The plant back then was considered non-functioning… 175 176 177 178 Focus group, Stavropol territory. Ibid. Focus group, Smolensk region. Survey of women participants in focus groups. 191 I tried to prove to the local pension board that in reality I had been working at the plant during all that time and that I hadn’t had a single day of leave without pay. I couldn’t prove anything to anyone.179 Practically all women surveyed in the course of the monitoring effort believe that retirement benefits are insufficient. The majority of women view the situation with pessimism: I am also concerned about the small size of retirement benefits that is only sufficient to pay for housing services. It is telling that many women rity” is deliberately designed consequently, for arbitrarily about pension officers are thus think that Federal Law “On Pension Secuto allow for different interpretations and, determined pension amounts. Complaints frequent: I am concerned about the ambiguity of the pension law that is interpreted in any way one [any given official] wants when one is determining pension amounts.180 Also: My father applied for his pension. He was told the amount of his pension. He bought a bottle of liqueur and took it to the pension fund. His pension was raised. The person who calculates the pension amount can use some article. Or she could ignore it. This will impact the pension size.181 As reported by a women’s organization in the Stavropol territory, women most frequently complain about small pensions and high utility fees. In order to sustain themselves, many women continue to work for quite a long time after their retirement. Violation of Rights to Child Benefits Today a large number of women in Russia work either without labor agreements or with labor agreements that provide for a merely nominal wage (frequently minimum wage), which is significantly smaller than the agreed-upon wage. In the first case, women are not allowed any sick leave, maternity leave, or childcare benefits; in the second case, they receive social benefits, but the specific amounts of aid and degree of benefits are calculated on the basis of the nominal wage, and are thus minuscule. For more details, see sections “The Right to Equal Pay” and “The Right to Equal Opportunity in Access to Employment” in this report. The current Labor Code provides for a significant number of benefits related aimed at strengthening not only the mother’s but also the father’s social role in the raising of children, which facilitates the promotion of gender equality. Thus, Article 256 of the Labor Code provides that “childcare leaves can be used entirely or partially also by the child’s father, grandmother, or other relative or guardian who in fact takes care of the child.” However, the share of fathers who exercise these rights has so far been insignificant. In the Irkutsk region, for example, they constitute only 1% of employees taking leave to care for children. 179 180 181 Focus group, Rostov region. Focus group, Saratov region. Ibid. 192 In spite of the fact that all social benefits are guaranteed by the legislation, it is nonetheless incapable of helping recipients to maintain a reasonable standard of living. Individuals who find themselves in difficult situations without means to sustain themselves encounter problems when applying for social benefits more often then others. The most frequent victims are single mothers: And I agree that the state infringes upon the rights of women. First of all, the amount of child benefit when there is a single mother… is 200 rubles. Well, this is ridiculous. Is it possible to raise a child on 200 rubles? It is good when there is, when there is an additional income or when parents help.182 Also: A single mother is simply unable to raise a child independently.183 Also: I am raising my daughter alone. A single mother is viewed as an inferior being, every day she has to fight for her place under the sun, obtain piles of documents to have her application for benefits processed, to have her social status linked to her place of residence. Unemployment benefits are meager and I have an ill mother for whom I have to buy medication. It is good that she regularly receives her pension on which we actually live.184 Also: A monthly benefit in the amount of 70 rubles is paid for each child. What can one buy on that? I have two children; I am paid 140 rubles per month for them. I have no parents; I was raised in an orphanage. I work in domestic services. Everybody knows that it doesn’t pay. So, I have to work at two jobs all the time.185 Some people surveyed noted that, to add insult to injury, sometimes not even the small child subsidies promised are paid in full: Speaker A: It is understandable that an engineer with higher education is a poorly-paid specialist. But law is law and you can’t oppose it. And then again the monthly benefit for a child under the age of one and a half is the same for everyone — 550 rubles. Speaker B: At our plant it is 200 rubles. Speaker A: Why 200 rubles? Speaker B: Because 550 rubles are paid from the federal budget, and the plant pays 200 rubles. I know that because daughter of one of our colleagues had a child and we had a conversation like that. Speaker A: So, who is violating the federal law then? Speaker B: The plant administration.186 182 183 184 185 186 Focus group, Moscow. Ibid. Focus group, Barnaul. Focus group, Rostov region. Ibid. 193 Violation of the Right to Social Security Benefits (payments and arrears) Many women from among the focus groups participants complain about the fact that social security benefits to which they are entitled are delayed or not paid at all: I don’t know of any such people, even those social subsidies that are called child benefits are not paid on time.187 Also: I think I read something somewhere but I have never encountered that in my life. I know that even child benefits are not paid.188 Also: There are child benefits but first, they are not paid, and second, those amounts are so minuscule one cannot buy anything on them.189 Also: My son was born in 1996 but since 1997 I haven’t seen anything remotely resembling child benefits. My baby says, “Mommy, when we have collected all the child benefit money we will buy a big color TV.” I nod, like, “Of course, baby, we’ll buy it.” But I think to myself, “what TV set are we talking about?” I wish we had enough money to sustain ourselves.190 Women’s organizations from the Penza region report that arrears on child benefits were paid out in 2001—2002. However, frequently barter arrangements would be made instead: recipients would be given stationery, footwear, foodstuffs, furniture, etc. instead of their cash benefits. In some cases, women did manage to receive the benefits in court: I pressed charges and made them pay.191 However, this is generally the exception to the rule. In the overwhelming majority of cases, the woman who does not receive her benefits does not even try to stand up for her rights: And if you don’t receive your money this money is transferred somewhere anyway, I think, because every child is listed. I hadn’t received anything in two years, but then I came to talk to the officials. I know that the money sits there in a deposit for some time if you don’t receive it. I requested that my benefits for the last three months be paid out to me. It was a difficult situation. And they said, “Everything has been already received on your behalf.” Even these kinds of things happen. Many have given up.192 Some of the focus group participants noted that the situation with payment of benefits had improved. And although the amount of payments, as 187 188 189 190 191 192 Focus group, Smolensk region. Focus group, Stavropol territory. Ibid. Regional Report “Discrimination against Women in the Saratov Region—2002..” Focus group, Rostov region. Focus group, Novosibirsk region. 194 a rule, does not satisfy anyone, the very fact that they are paid at all is viewed in a positive light: In terms of rights that are observed in one way or another, we can talk about child benefits, the payment of which has begun. The benefits are very small but still they are paid out.193 However, those women who were receiving benefits, or at least were entitled to them at the time of the monitoring effort, were less optimistic: Yes, I do receive a child subsidy, but it is nothing, 70 rubles from the federal budget. Yes, it is ridiculous. What kind of governmental support are you talking about, what can one buy on 70 rubles?194 Complex Procedure of Redemption of Benefits The majority of the women surveyed were not content with the fact that social assistance in the country is provided only at the request of the eligible beneficiary. As a result, women who are uninformed about the benefits and subsidies to which they are entitled and consequently apply late, will never be able to receive the “missed” payments. In addition, in order to receive social assistance, candidates must first compile a large number of documents. Some women perceive the benefit validation procedure as humiliating: So many formalities one has to go through, so many documents to collect and submit, so much that you are eligible for assistance. And then they just send you from one office to another until you give up.195 Also: We never received child benefits. Why? I can explain: I hate this social system of ours… I have never been there myself but what I have heard from other women sounds utterly humiliating to me. I think that if a woman has had a child she should not be obligated to go through all those bureaucratic procedures... Here a child is entitled to a benefit. Here a child is entitled to this amount from this age to that and to that amount from that age. He goes to school, he is on the list. Children go to school; it’s as simple as that. I am not talking about kindergartens where one can go and not go. If a child has begun to go to school his parents cannot around social security services beating down doors collecting documents. The child was born; it means that it is there and according to the law a child benefit must be provided to him, so please pay it. The very fact of these social benefits, of assistance to people and women in particular — they are only on paper and when our social security officials appear on television saying that they help us a great deal I just turn it off. It is money, but there is so much humiliation.196 According to other women who participated in focus groups, due to the complex benefit redemption process and the small size of the payments, only those who are really in need bother to apply. 193 194 195 196 Focus Focus Focus Focus group, group, group, group, Saratov region. Smolensk region. Karelia Republic. Novosibirsk region. 195 How many young women are there in here who have children? Now, how many of you receive child benefits? The monthly benefit is 84 rubles. I did get it during the first year. After that I guess only those who are really in need fight for it.197 Also: We don’t even go to get them, the majority of us. Therefore, we usually don’t care about it. Very few of us go for benefits. We don’t have the time. We work for 12—14 hours on end, for six months in a row without a single day off.198 Also: I had my first child back in the Soviet times and everything was paid out to me. When I had my second child I was working and, naturally nothing was paid to me. So, I depended entirely on my husband. To this day, I have not received anything. I was told to collect lots of documents and many of them from organizations that no longer exist; I would have to spend so much time in lines that it is simply not worth it. But what we are eligible to receive is an insignificant amount. Maybe it depends on where the woman works and how much money she earns, but this is not really worth fighting for — the 100 rubles in child benefits, what can one buy on 100 rubles?199 Many women view the lack of support from the state as a planned policy: The government speaks so much about the demographic problem, but the size of child benefits, which are not paid anyway, sends the message that no one in our state needs except their parents.200 Also: As a young mother, I am concerned most of all about the lack of support from the state for women on maternity leave. The benefits are simply ridiculous. Will women have children if the state pays 50 rubles a month to support them?201 Also: Mostly people go looking for material support. And it is a meager amount that they can count on. There is a bill in the State Duma right now that would regulate the provision of social assistance to women with multiple children. So, according to this bill, each child is to receive 100 rubles quarterly. A colleague of mine has four children, one of whom is disabled. She applied to the administration for assistance. I don’t remember how much money exactly she managed to get from them but I am positive that it was a meager amount.202 Also: Most of all I am concerned about the status of young families, children. And what about child benefits? I guess that the government is simply 197 198 199 200 201 202 Focus Ibid. Focus Focus Focus Focus 196 group, Novosibirsk region. group, group, group, group, Murmansk region. Stavropol territory. Penza region. Kaliningrad region. ashamed of discussing it. Pensions are talked about a lot, but [not] child benefits.203 Also: The only thing that can be changed is the social support system. But in our country I do not believe [it is possible].204 As a result, women more readily depend on targeted assistance from the private sector rather than on the state’s guarantees. For example, respondents from Saratov (all of them are employees of the municipal social security service) conclude: If one compares assistance from the state to private donations, the latter is much more tangible. Private enterprise is not always very rich, but it does respond and provide as much help as it can afford: sometimes foodstuffs, produce, and other needed goods. For example, the sewing factory has supplied several lonely and needy old women with outerwear. Some deputies of the Saratov Regional Duma also help. They gave us food boxes for our patrons. If one should compare assistance from the state and from private donors, the latter is better and more expedient. The reason apparently is that, as opposed to the state, the donor manages his funds independently without any coordination with anyone. He independently decides who to help and with what. In addition to enterprises wealthy people help our patrons as well. For example, one private entrepreneur has opened a free canteen for children from families with low incomes. We gave him a list of such families and lists of social security centers in the nearest districts. And children from families with low incomes residing in those districts receive special coupons to eat in this canteen free of charge.205 THE RIGHTS OF AND SPECIAL BENEFITS TO PREGNANT WOMEN The RF Labor Code provides women with rights to certain benefits in connection with childbirth. It also guarantees rights to safe working conditions for pregnant women and protection of women from dismissal during pregnancy.206 The previous Labor Code, (KZoT) adopted in 1971, also created a system of special norms guaranteeing special protection of pregnant women in the workplace. These norms were transferred to the new Labor Code without significant modifications. The monitoring findings indicate that the practice of violation of the above provisions of the labor-related legislation is widespread. Regional reports by the women’s groups illustrate registered cases of such violations. For example, the Novosibirsk region notes the case of S. Korkina, who was dismissed on the basis of her “own request” when the head of the “Sibvest” company learned about her pregnancy. The director of the “Wall203 Focus group, Karelia Republic. Focus group, Novosibirsk region. 205 Focus group, Saratov region. 206 RF Labor Code (adopted on December 30, 2001, #197). Articles 64, 92, 93, 96, 99, 123, 125, 126, 254—256, 258, 259, 261, and 298. 204 197 paper Center” company, I. Sukhova, dismissed the employee Y. Shirshova as incompetent upon completion of her probation period. The woman was pregnant when she was dismissed.207 In the Komi Republic, the “Realtor” company (headed by S. Terentyev) did not pay N. Belykh a child benefit to which she was entitled having recently given birth. Similarly, the Board of the “Vorkutaopttorg” company (chaired L. Ischuk) refused to pay a childbirth benefit to its sales assistant A. Ustinova and the ZhFK company (managed by L. Zaitsev) did not pay pregnancy or childbirth benefits to G. Leinveber.208 This is merely a small sample of the many such cases. Non-observance of the rights of pregnant women was mentioned in the majority of expert interviews and focus group surveys: In practice, these rules are seriously violated. This applies to the rights to vacation and benefits associated with birth and raising of children; this applies to the schedule, working conditions, and compensation as well.209 Also: Absolutely no employer needs a pregnant woman in the labor market, so all rights of the pregnant woman are violated.210 Also: No employer wants to pay any benefits to a pregnant woman.211 Also: Do women encounter problems in the workplace when applying for maternity leave? — Yes, very often.212 Respondents especially emphasize that violations occur most often in businesses: If the job is in the state sector this problem is solved one way or another, but if the job is in the private sector there is no maternity leave.213 Also: Business leaders do not observe norms created by labor-related legislation, in particular relating to pregnant women. Public sector employers have human resource departments, they have trade unions etc., whereas commercial employers act each in their own way — they have total control of the situation; therefore, a pregnant woman is practically unprotected.214 207 Regional Report “Discrimination against Women in the Novosibirsk Region—2002.” Regional Report “Discrimination against Women in the Novosibirsk Region—2002;” Regional Report “Discrimination against Women in the Komi Republic—2002.” 209 Focus group, Smolensk region. 210 Interview with a psychologist of the Municipal Employment Center, head of the “Job Hunters’ Club,” Kurgan region. 211 Interview with a leading specialist of the Public Relations Department of the Penza Regional Government, Penza region. 212 Interview with a female deputy, Smolensk region. 213 Focus group, Murmansk region. 214 Interview with a psychologist of the municipal employment center, Kurgan region. 208 198 Also: No employer wants to pay any benefits to a woman. In budget organizations, though, they do pay.215 According to most regional organizations involved in the given program, the reason why the rights of pregnant women (and rights of working women in general) are violated is that the extensive system of social rights created in Soviet times proved to be impractical for the new socioeconomic conditions: Implementation of the 1971 Labor Code, closely linked to socialist dogma had the effects of overloading labor legislation with benefits and guarantees provided mostly by the employer and excessively regulating the hiring and dismissal processes. The new Code retains this imbalance and continues to favor the interests of employee rather than those of employer (such a situation makes all rights difficult to protect, and will result in the violation of even the most basic rights).216 Employers share the opinion that the state unjustly shifts the burden of implementation of its social obligations upon them. Our legislation is far from perfect, in particular when it addresses small businesses. Just like all other commercial enterprises we pay taxes to all the funds (social insurance, medical insurance, etc.) but neither our employees, nor us have the right to a social insurance fund discount when we pay for our vacation packages. We are forced to pay maternity leave and pregnancy benefits from our own pocket. The same applies to sick leaves. Our state is an employer as well and it neglects salaries for months on end. Should a small business fail to pay a salary or some benefit on time, the court’s decision will that you lose everything — you pay the full price and more. Hence, we use age restrictions in recruitment.217 Employers regard observation of the rights of pregnant women as an unjustified burden. One of the surveyed employers said, “we have to comply but there have been such cases [of non-payment].”218 The last case is not accidental since in the present situation the employer prefers to either not hire women aged 20—30 at all (see section “The Rights to Equal Opportunity in Access to Employment”) or to not execute official labor agreements by and between them. An expert argues: Women who have found employment do not sign any legal documents for their employers. What happens here is each employer acts as he sees fit, i. e., the boss in such a situation [when a woman employee is pregnant] simply declares, “Today is your last working day,” and that’s it.219 215 Interview with a leading specialist of the Public Relations Department of the Penza Regional Government, Penza region. 216 T. Maleva, “New Labor Code: Victory or Defeat?” (Moscow Carnegie Center Briefing, 2001. V. 3, issue 12). 217 Interview with an employer, Murmansk region. 218 Interview with an employer, Altay territory. 219 Interview with a psychologist at the Municipal Employment Center, Kurgan region. 199 Another frequent option for employment is an oral agreement to rule out pregnancy. Should the woman fail to comply with this informal provision, she is forced to quit. Our focus group data indicate that women do not take the risk of ignoring this condition: I was going to give birth to my second child but yet when I was hired the company director put forth some conditions: maternity leaves, housing, kindergartens — none of that would be offered. My contract did not say anything about it, but I was warned that I was not supposed to get pregnant or else I would have to quit. I had to choose between the job and having children. I brought a medical statement that said I was not to travel on business. Fifth month of pregnancy, toxicosis, etc. The boss said right away that I had known [about the agreement] and that I was to quit. I handed in the notice [letter of resignation]. I was very upset but what can you do? I was left without anything, didn’t receive any benefits, neither pre-birth nor maternity, no benefits...220 Also: I studied to become a cutter and took a maternity leave. And they were trying to get me to work for another five years [saying], “You should have warned us that you would take a maternity leave.” The boss was mad at me, called me names. Claimed I had signed an agreement and committed myself to several years of work, but we never signed anything! I tried to seek assistance from lawyers, but to no avail. There was a scandal. Still, I was fired, retrospective to when the pregnancy began. In addition, they caused a gap in my working record.221 At times, pregnant women encounter threats from employers: A friend of mine had a problem like that. She worked at a store, had worked there for two or three months and found out she was pregnant. She was told that if she didn’t quit of her own accord other grounds would be found for her dismissal.222 An example of this dismissal process is provided in the regional report from the Komi Republic. The director of an organization authorized his chief accountant to take a maternity leave but instead of processing relevant documents and paying benefits he began to issue one official reprimand to her after another and eventually fired her. A typical case of violation of social guarantees, according to women’s organizations in Tatarstan, is illegal dismissal of pregnant women and women on maternity leave. Frequently, employers justify the dismissals by change of business proprietor. Cases in which women whose maternity leave recently ended are requested to “show up at work for one day” in order to legally legitimize their dismissal are widespread. This happened to Elena (Naberezhniye Chelny, Tatarstan Republic): This is the moment when [women] have spent three years [on maternity leave] and two months before they are to resume their work there begins the processing of the paperwork necessary to lay them off. That is to say that the [woman] is laid off on the day when she is to resume her work. “We have laid you off, we don’t need you, but you will have to show up 220 221 222 Regional Report “Discrimination against Women in the Tatarstan Republic—2002.” Ibid. Focus group, Moscow. 200 at work for one day.” So that everything looks legal. So the protection of motherhood and childhood still remains on paper only.223 In addition, according to regional monitors, employers take advantage of the fact that the nominal wage oftentimes constitutes but a small portion of the actual wage, paying women the benefits they are entitled to in connection with their official — nominal — salary, not the substantially larger actual salary. The size of those benefits turns out to be minuscule. The following example is provided in the regional report from Novosibirsk. O. Fyodorova applied for a maternity leave to her employer (V. Petrov), for whom she had worked for over a year. Then, she found out that the amount of the benefit to which she was entitled constituted only 20% of her average monthly wage. Her official monthly wage equaled 450 rubles, and that was the amount that became the basis for her benefits calculation. The belief that the woman must ultimately always choose between her work and her family only contributes to the outlook. Focus group participants frequently affirmed that caring for her family and children must remain priority for a woman: We cannot equate [the options of family and career] because of women’s particular functions: they must have children and they must spend a lot of time bringing them up. A wife is a woman in the house, the keeper of the family hearth. Among my younger acquaintances, there are a lot of those who are all into work, their children with nannies, doing all right, working all right. There. But God only knows what will happen in their families.224 Also: Today, the mother is so overloaded that she has no time to spend with her child. Women have to be given an opportunity to work a short day or three days a week so they can spend more time at home.225 On the other hand, the loss of employment and the insignificant amount or, in some cases, total lack of benefits often determines the family planning policy: An acquaintance of mine had this problem. She worked at a store and she worked a seven-day week. Having found out that she was pregnant they told her, “good bye, we are not obligated to support you. Now you will go on maternity leave and expect us to provide for you?” She had to choose — either to have an abortion or quit her job.226 Also: Many women decide to give up the maternity leave that they are entitled to, both pre- and post-birth, because of financial considerations.227 Also: No, it does not depend on the family only, it also depends on the state. If the state guaranteed me some financial assistance, if my employer 223 224 225 226 227 Regional Report “Discrimination against Women in the Tatarstan Republic—2002.” Focus group, Moscow. Focus group, Rostov region. Focus group, Moscow. Regional Report “Discrimination against Women in the Smolensk region—2002.’ 201 waited for at least nine months after the birth of my child so that I could send the child to the nursery, if my job were retained for me, then I would have children.228 Article 254 of the Labor Code obligates the employer to modify working conditions of a pregnant woman so as to prevent her “subjection to unfavorable working conditions” but retain her “average wage from the previous position.” According to the monitoring findings, in reality, if the employer does not modify working conditions of a pregnant employee, the woman either agrees to work in the old conditions and on the old schedule or she has to leave her job. Unwillingness of the employer to comply with this requirement of the labor law also leads to dismissals. This is confirmed in regional reports. For example, director of the ZIP“Service” restaurant in Krasnodar frequently executed temporary oneyear labor agreements when hiring female employees. Pregnant women were simply not re-signed. In the Novosibirsk region the previously mentioned private entrepreneur S. Petrov refused to meet the request of M. Kostyrycheva, a pregnant woman who asked that her working schedule be modified. Upon his refusal, the woman agreed to maintain her old schedule. Sadly, women whose labor rights are violated rarely use the courts to protect themselves. This comment, by a focus group participant in the Tula region, is typical: I didn’t petition anywhere, I simply quit when my boss imposed a fine on me and refused to pay.229 THE RIGHT TO FREE OBSTETRIC CARE In accordance with the RF Constitution (Article 41), people have the right to health protection and free medical care. Additionally, Russian law guarantees free obstetric aid: Every woman is provided with specialized medical care in institutions of the state and municipal health care system during pregnancy, as well as during and after child birth, paid for by funds designated for protection of citizens’ health and by other sources that are not forbidden by the legislation of the Russian Federation.230 Nevertheless, the analysis of information obtained in the course of the given monitoring effort leads us to conclude that these promises remain largely unfulfilled. In the course of the focus groups conducted in the regions, women conveyed an extremely negative opinion of the quality of obstetric care in the Russian health care institutions: 228 Focus group, Murmansk region. Focus group, Tula region. 230 Article 23, “Rights of Pregnant Women and Mothers,” Foundations of the Legislation of the Russian Federation Regulating Protection of Citizens’ Health #5487-1, dated July 22, 1993 (Alterations and Additions: December 24, 1993; March 2, 1998; December 20, 1999; December 2, 2000). 229 202 I happened to give birth on the first day of January and naturally I was an “unexpected guest [at the medical facility].” Secondly, the girl who had given birth before me suddenly felt bad and everyone left to check on her. When I was already in labor they remembered about me and hooked me up to a drop-bottle, just in case I should feel bad for some reason.231 Also: I do not have children but my friends keep telling me the horrors about what is going on in our obstetric wards.232 Also: I am scared of the thought of my child giving birth. Because when I was giving birth to my first child I was completely alone on that day. And when the child was born everyone just left me on that table.233 Also: I did my best to forget about how I gave birth to my two beloved sons. I do not want to give birth like that ever again.234 Legislators interviewed in the course of the monitoring effort also give a negative assessment of the protection to women’s right to free obstetric care: Question: How to you estimate the level of medical care: maternity home, obstetric consulting services? Answer: Abominable, just like the entire health care system235. Also: The level of medical care definitely needs improvement (nothing is free of charge; one must pay for everything and not every woman can afford it).236 At the same time, it is obvious that the low quality medical care and degrading treatment of patients are the same problems facing the health care system as a whole. Both participants of the focus groups and the surveyed deputies share this viewpoint: Certainly, the quality of medical care must be significantly improved, especially in the obstetric sphere. Everything is interconnected. The quality of obstetric care cannot differ from that of health care in general. In order to improve in this area one must consider physicians’ wages, provision of medical equipment and medications to health care institutions, etc. Medical programs for women do exist, but how much money is available for the implementation of these programs, and how much money do they actually require? In other words, of course, this is not enough.237 231 Focus group, Kaliningrad region. Focus group, Altai territory. 233 Focus group, Rostov region. 234 Focus group, Udmurt Republic. 235 Interview with a female deputy, Smolensk region. 236 Interview with the Vice-Chair of the Kurgan Regional Duma (in charge of issues related to implementation of women’s rights ), Kurgan region. 237 Interview with a member of the social policy committee of the Penza Regional Legislative Assembly. 232 203 Also: Rudeness, carelessness, poor sanitary conditions — one comes across these phenomena not only in maternity homes or obstetric consulting offices, but in any health care institution. These are the problems of not only women’s institutions, but of the health care system in general. And if you want to be served quickly, comfortably, effectively, and be treated as a human being at that, then apply to pay-health care institutions.238 Also, focus groups’ female participants said it was impossible to protect their rights and interests: In our city of Izhevsk, women’s rights are not protected in so far as they relate to childbirth. A woman who has faced difficulties in an obstetric consultancy or in a maternity ward often finds herself in such a humiliating situation…and rarely does she seek redress in any agencies which could help her protect her interests. I, for instance, do not even know where to go in case I am humiliated and deprived of adequate medical treatment.239 Women who apply to municipal health care organizations have to cover the expenses associated with medical treatment provided to them. These expenses mainly have to do with procurement of the necessary medications and supplies: My sister had problems when giving birth. Everything that was necessary for child delivery was paid for by our parents.240 Also: Child birth is such a rare thing today that the attitude towards woman in obstetric ward is good, of course, but frequently doctors ask women to take care of their own medications, bandage supplies, and supplementary nutrition. There are well known cases of obstetric wards getting cut off from central heating…patients’ relatives would bring electric heaters to keep their women and children warm.241 As reported by regional monitors, when obstetric wards force patients to provide for themselves, they often do so quietly and unofficially. According to women’s organizations’ reports, maternity wards in the Penza region issue “to-buy” lists to their patients that even includes things like detergent, of no use to patients individually but in high demand by the health institutions. This is largely due to inadequate funding for the health care system: Well, naturally, our health care is very low level. It can be explained by the lack of budget funds allotted for these purposes. And the Health Insurance Fund cannot solve all the problems.242 At the same time, it should be noted that health care personnel tend to make up for budget shortfalls by unfairly forcing patients to pay for their medical treatment: 238 239 240 241 242 Focus group, Smolensk region. Focus group, Udmurt Republic. Focus group, Stavropol territory. Focus group, Smolensk region. Interview with a woman deputy, Saratov region. 204 I have quite a few acquaintances who have already given birth or are going to do it soon. The situation in maternity wards is dreadful… no treatment at all. When you’re done, they throw you on the bed and leave you to lie there on your own. She cries, she’s in pain, and she only hears, “That’s nothing, just lie there for a while.” But if you pay money in the same hospital — there you go: slippers for you, fresh sheets, and so on.243 Also: A friend of mine works for the railroad which provides her and her children with certain benefits. When she was giving birth her family paid one thousand rubles to the hospital. This is usually considered as free of charge. And not long ago one of our colleagues was giving birth in one of the municipal hospitals. First, she stayed for two weeks in the pre-natal ward believing she was about to have a miscarriage, and then she was told that the delivery would cost 4 000 rubles. Another thousand she put in an envelope that she gave to the obstetrician who was to assist her. This is not a commercial but a public hospital, so all these fees were specified only verbally. No such payment is ever made officially…It is not only in maternity, but also in other departments that one has to pay for medications, bandages, gauze, syringes, and other things.244 The majority of women participants in the focus groups share the opinion that an obstetrician will not take care of a woman in labor unless she/he is compensated in one way or another: There is also a notion of “platniki” [paying patients]. When you are able to pay — you get a totally different attitude — everything is provided for you, including a single room and an obstetrician who will monitor your entire pregnancy, prepare you, etc. Here arises the issue of difference. Why does a financially insecure woman not have the right to decent medical treatment, normal child birth and a healthy child?245 Also: The issue is more and more connected to money. Somehow nobody mentions quality anymore; these days one simply hopes to receive the service.246 Also: Today, there are two categories of women in maternity wards — those who pay and those who do not pay. All the attention goes to the former, while the latter hardly get anything.247 Also: Yes… either for money or for… although it depends on the doctor or rather on his or her conscientiousness. A friend of mine while she was at a gynecology ward paid with a bar of chocolate for each injection she needed to have.248 243 244 245 246 247 248 Focus Focus Focus Focus Focus Focus group, group, group, group, group, group, Moscow. Saratov region. Udmurt Republic. Karelia Republic. Stavropol territory. Moscow. 205 The belief that satisfactory medical care can be only obtained for money is becoming more and more widespread: These days, getting decent medical care implies a financial commitment. As mentioned before, the same maternity wards provide paid services that give more qualified treatment, i. e., everything has to do with money.249 Also: I do not have any children but my friends say that in order to give birth normally one has to pay a lot of money.250 Representatives of executive agencies also share this opinion: I have developed an impression that if you have enough money you will get good quality medical care. If you do not have enough money you will not get good quality medical care.251 We should note that women are generally of the opinion that if worst comes to worst they will get free medical help, but this care will be extremely minimal and/or of poor quality: Every person can count on minimal assistance, everything that’s beyond this has to be paid for.252 Also: The necessary medical assistance will definitely be provided to a woman. But quality, efficiency, and individual attention have to be additionally paid for. Health care institutions, as a rule, do not refuse to help the homeless, the drunk, or the drug addicts — I do not presume that a doctor would ever refuse a needy person.253 Also: The woman in our country will never be abandoned. Medical treatment will be offered to her by all means even if she is a street bum. The different issue is how it should be. The state under-funds the health care system. Only wealthy women can afford ideal conditions in a maternity ward, and such are not numerous in our country.254 Note that conditions differ dramatically in the same municipal health care institution for those who pay and those who do not pay: My daughter is 18. And it is understandable that it [the experience of giving birth] was quite a shock for her. She stayed in the hospital throughout almost her entire pregnancy. She was in a paid ward in order to have at least some of the necessary conditions. But when it was time for her to give birth it turned out that all the paid wards were occupied. She had to go to an unpaid ward where conditions were intoler- 249 250 251 252 253 254 Focus group, Udmurt Republic. Focus group, Stavropol territory. Interview with a representative of the Ministry of the Internal Affairs, Karelia Republic. Focus group, Kaliningrad region. Focus group, Smolensk region. Focus group, Altay territory. 206 able. It was very hot but no window in the ward would open, there was no ventilation whatsoever.255 A significant number of focus group participants shared the opinion that a woman entirely relying on guaranteed (free) medical care puts her health and life at risk and jeopardizes the health and life of her child: If a woman or her family do not have the money and the woman is about to give birth, she will not be left out in the streets. Of course, she will be offered obstetric care, but this assistance will be of such poor quality that she will have to consider herself and her child lucky if they both remain alive and well when everything is over.256 Also: I haven’t thought about this yet but I think that it is better to pay in order not to jeopardize the health of the child.257 Also: I know of an example in which a friend of mine who could not have children for a long time eventually gave birth to her first child in obstetric hospital #2. In seven days, the newborn died. This obstetric hospital was terrible; the attitude towards patients was terrible. It took her a year to recover from the trauma. Three years later when she was to give birth for the second time, now in obstetric hospital #6, she and her husband did their best to ensure that she would have a paid ward and doctors who would not leave her out of their sight. So, you either have to have money or very good connections, but it’s better to have both.258 According to regional monitors, free obstetric care does exist formally (albeit not in all the regions), but practically all the maternity wards provide higher quality, paid services. Women’s organizations in the Novisibirsk region maintain that 33% of women who have given birth in that area paid for services. The list of paid services in hospitals that also provide free services is constantly expanding. Usually, hospitals say that woman can choose between paid and complimentary medical services, but in practice women often find that they do not have any real choice. This is especially true with respect to tests. Hospitals, as a rule, do not have enough equipment to provide specialized assistance to women at all stages of their pregnancy. Therefore, when it is time for her test, the woman is urged to pay for it if she wants to do it in an efficient manner (free testing is only available to those who wait in line for several months): Maternity wards and obstetric consultancies provide a number of services that are available to everyone free of charge, but there are services for which doctors recommend payment. Among such services, for example, are tests, including express testing performed with expensive equipment, anesthetics that are always required for abortions, and post-surgery rehabilitation. Ultrasound examination must be made available to everyone free of charge of course, but usually doctors say that the waiting list is 255 256 257 258 Focus Focus Focus Focus group, group, group, group, Udmurt Republic. Saratov region. Stavropol territory. Udmurt Republic. 207 so long you will have to wait for two months. Naturally, if you pay for their services, they will test you on the same day.259 Implementation of the right to free obstetric care is especially insufficient in rural areas. For example, according to regional monitors, obstetric offices of the Ust-Kulomsky district of the Komi Republic are in dreadful conditions — they have not been renovated for years on end. Representatives of government also express their concern about the difficulty of providing health care services in rural areas: The hardest is the situation for people who live in remote places, including the rural areas, and also, in our case, military bases, where obstetric clinics only give out aspirin, let people use an out-of-order weighing scale, and do nothing else for the benefit of pregnant women. In the regional capital, there are pre-natal diagnostic centers but they would require even greater investments — at least 20—30 million rubles — to become as well-equipped.260 Also: I am positive that medical institutions of this category must be supported by the state since the majority of women, especially those who reside in the rural areas, cannot afford to pay for health care services.261 It is important to note that the guaranteed free medical care is only available when the person seeking it has medical insurance and seeks care in his/her place of residence. It has to be specifically mentioned that if a pregnant woman has no medical insurance policy or is seeking medical assistance at a place other than the place of her official residence (where she is registered to live) she can count on receiving obstetric care on a pay-for-service basis only: I am registered in a rural district but there are no qualified physicians there, therefore I have to search for doctors in town and pay money.262 DOMESTIC VIOLENCE Focus groups participants, when asked, said that domestic violence is not among the most significant women’s rights problems in the Russian Federation. However, the problems raised in the focus groups shows that domestic violence is a very serious issue indeed: It is a most important subject. Because there is not a single family in which a woman would not be humiliated. And there is nothing a woman can do about that.263 259 Focus group, Smolensk region. Interview with the Chairman of the Social Policy and Health Care Committee of the Kaliningrad Regional Duma. 261 Interview with the Chairman of the Stavropol Territory State Duma Committee on Social Policy, Science, Resorts, Public Organizations and Cossacks. 262 Focus group, Krasnodar territory. 263 Focus group, Moscow. 260 208 Also: I have a lot of relatives and acquaintances who can serve as examples.264 Many women insist that domestic violence is a mostly hidden phenomenon: No, I do not know of any such stories in my circle, but one must bear in mind that the subject is not popular and not everyone wants to discuss it or, as they say, “wash one's dirty linen in public.265 Also: Even family members do not have a clue as long as no obvious signs of battery are seen.266 According to information collected by regional monitors, it is clear that domestic violence is widespread. The women’s organization “Femina,” located in the Tatarstan Republic, conducted a research project which determined that physical violence occurred in 55% of respondents’ families of which in 19% of cases it is relatively benign, in 17% — rather heavy, and in the last 19% — very heavy. “Femina” also determined that psychological violence occurred in 80% of respondents’ families. Women’s organizations in the Rostov region, which also act in the capacity of a crisis center working with victims of domestic violence and offering hotline consultations, report that for the period of 2001 and the first nine months of 2002, they had received over 28 000 calls, out of which more than one thousand related to domestic abuse of women. Russian legislation does not provide any specific protection from domestic violence for women. Currently, legislators are concerned only about domestic violence as it relates to children.267 In essence, there is no state system to protect victims of domestic violence. This was mentioned by nearly all focus group participants. Many are convinced that women in such situations have nowhere to go: Violence must not be tolerated. I have never encountered it myself but I think that in general women have nowhere to go in such situations.268 Also: I know that there is a problem of violence in families. But I do not know where a woman can look for help.269 Still, according to the women’s organizations, there are crisis centers and hotlines. In very few regions, there are also shelters maintained by NGOs. However, focus groups participants tend to question their effectiveness. 264 Focus group, Udmurt Republic. Focus group, Smolensk region. 266 Ibid. 267 Resolution #313 of December 26, 2001, passed by the Moscow City Duma “On Legislative Initiative of the Moscow City Duma “On the Draft Constitutional Law “On Amendments and Additions to Federal Constitutional Law #1 “On Judicial System of the Russian Federation” of December 31, 1996,” which considers the problem of children, can serve as an example. 268 Focus group, Penza region. 269 Focus group, Tula region. 265 209 First, the overwhelming majority of women who have suffered domestic violence rarely turn to social organizations for assistance due to “fear” and “shame.” And second, shelters for women who have suffered domestic violence only allow the victims to stay for a limited time. Of course, during that short time the woman is usually unable to improve her situation or solve her housing problem. Recently a shelter has been opened in Novosibirsk for women who found themselves in a difficult situation. It accepts women who suffer from violence and are on the verge of family breakup. They can go there. They will be offered a bed and board. You can stay there, but not for too long — a week or two. In two weeks, you will have to leave and go somewhere else.270 Oftentimes, husbands and wives do not have the financial means to live separately after divorce (if their apartment is too small, selling it would not yield enough money to buy two separate apartments). This fact — plus the influence of commonly held beliefs like “a child must have a father” or “a woman must save her family at any cost” — force women to put up with domestic violence: Usually, women do the best they can to keep their families intact. To the question, “Why remain passive and not do anything?” women typically respond, “The child needs a father.271 Also: The woman has to be very strong in order to give up such an unhappy family and become free. The woman is also frequently afraid of public opinion, which may leave her ostracized for her failure to save her family, for her decision to divorce. That is to say that the woman tolerates violence in order to retain her social status as a married woman.272 The majority of women suffering from domestic violence do not request help from law enforcement authorities. This is largely due to women’s lack of trust for law enforcement authorities (who generally tend to deny these types of petitions on the grounds that “this is a family matter”). Police officials try to not interfere with domestic issues. They do not register petitions and if did register, they often persuade the petitioners to retrieve them. First, this is because the would-be relevant Russian legislation is such that it does not apply to initial petitions unless someone is severely injured. And second, it is due to the fear that the domestic tyrant will sooner or later come back from confinement with a vengeance and the situation will become even more unbearable: Even if one calls the police, well, [the offender] will be taken away but he will be released on the next day. He will come back home and the same thing will continue.273 Also: Women also refrain from calling the police because they fear they will not be understood. Police officers are mainly men and they often regard 270 271 272 273 Focus Focus Focus Focus 210 group, Voronezh region. group, Rostov region. group, Saratov region. group. Voronezh region. the situation unfavorably for the woman. They side with the man saying that the woman is to blame.274 Also: I know people who have had experiences like that. They tried asking the police for help. It did not lead to anything. They were advised to sort it out themselves. There is no help from law enforcement agencies.275 Also: In this situation, the woman must first of all go to the police. The police can take away the one who has committed an act of violence in the family, but how long will they hold him? An hour, two, twenty-four hours. Eventually, he comes back home anyway and the problem is there again.276 Also: Most frequently, it is not the woman but her neighbors who call the police. Women are often afraid of going to the police. The husband will come back home after that anyway and the beatings will resume and possibly become even worse, since he will try to get back at her.277 Also: My father used to be physically violent. Whenever my mother would go to the police they would tell her, “It’s your family, sort it out yourselves.”278 Also: I think that our rights to security from domestic violence are not protected. The police do not properly respond to such calls saying that it is a “family matter.” They do not even apprehend the aggressor.279 Also: And how many examples, even ridiculous examples. The police was called and not by the wife who had been beaten but by her neighbors who felt sorry for her. And she [the wife] goes, “No, no, leave him alone, he is very good!”280 Also: I think that calling the police is an extreme measure. If respect is lost within a family this is no longer a family. Therefore, each woman decides for herself.281 According to the women’s organization “Femina,” which conducted the aforementioned survey among residents of the Tatarstan Republic: 274 275 276 277 278 279 280 281 Focus Focus Focus Ibid. Focus Focus Focus Focus group, Saratov region. group, Rostov region. group, Saratov region. group, group, group, group, Rostov region. Tula region. Udmurt Republic. Rostov region. 211 Only 40% of those surveyed admitted to having applied for assistance to the police. Of those who did not apply to the police despite having a reason to do so, 34% did not believe the police would help, 20% were afraid that the violence would be exacerbated, and 19% were afraid of publicity. Every fourth application (25%) was ignored. Of the rest of the cases, one-third saw no further development because of the prohibitively difficult process. In two thirds of the cases, the aggressor was detained for a certain period, usually one to three days. Only 13% of the victims of domestic violence would undergo medical examination. None of them would undergo psychological examination.282 The majority of women regard domestic violence as an internal family problem, which has to be addressed independently without involving law enforcement agencies: When I began to live with my first husband he tried to hit me because it used to be a normal thing to do in the family where he had previously lived. I had to shake him up a couple of times so that his eyeballs “sprung out.” After that (we lived together for 12 years) he never raised his hand against me.283 Also: I had an experience like that, but I hit him back. My husband attacked my son, I stood up for him and my husband hit me, but I hit him back. He hasn’t tried this ever since. But not every woman is capable of doing this.284 Also: In my family, my father had been trying to raise his hand against me for a long time, but I rebuffed him psychologically so strongly one day that he got frightened and I haven’t had any problems of that kind with him ever since.285 Legislators and administrative officials surveyed in the course of the monitoring effort suggested various possible solutions to the domestic violence problem: I think that one can influence this only through mass media.286 Also: It would be logical to increase the number of crisis centers for women, to create a shelter for women who need protection, to offer them temporary refuge.287 Also: In my opinion, it is public organizations that can address this issue. That would be very good indeed.288 282 Regional Report “Discrimination against Women in the Tatarstan Republic—2002.” Focus group, Rostov region. 284 Ibid. 285 Focus group, Pskov region. 286 Interview with the Chairperson of the Social Policy Committee of the city of Kamen-naObi, Altai territory. 287 Interview with the leading specialist of the Public Relations Department of Penza Regional Government. 288 Interview with a woman deputy, Smolensk region. 283 212 Also: Domestic violence is unfortunately widespread, but there is no public way to adequately address it. Authorities must take care to prevent violence. A whole system has to be developed to support the victimized person or her entire family.289 Also: Domestic violence is widespread. Authorities can help improve the situation by funding social programs and supporting the establishment of women’s rehabilitation centers.290 Also: I think that we should use the already existing legislation to the fullest and expand it with supplementary laws whenever it is required. And of course, women must fight for their rights, think about themselves, and confront their problems.291. Also: In the Saratov region, there has developed a system of interaction among various agencies working to prevent family problems, including domestic violence.292 SEXUAL VIOLENCE (EXTRA-FAMILIAL) The survey conducted among focus group participants indicates that sexual violence is not rated by them among the most significant problems from the viewpoint of observation of women’s rights. The subject of sexual violence was practically never raised in the course of focus group work. According to regional monitors, the number of rape-related criminal cases has decreased in some regions and increased in others. The share of these offences within the overall number of crimes varies from 0.24% in the Komi Republic to 4% in the Stavropol territory. However, sexual violence belongs to the category of crimes hidden from public view. Regional women’s organizations note that official statistics on these types of crimes do not reflect the true picture. Not all the women who are subjected to violence report to law enforcement authorities. According to the Center for Contemporary Policy Research, only 6—10% of victims go to law enforcement authorities and only 3% of victims ever reach the court. The monitoring findings help identify the reasons behind this situation. 289 Interview with the Chairperson of the Social Policy Committee of the Legislative Assembly, Karelia Republic. 290 Interview with the Deputy Chairperson of the Duma of the Kurgan region responsible for women’s rights issues. 291 Interview with a member of the Social Policy Committee of the Penza regional legislative assembly. 292 Interview with the Deputy Minister of Labor and Social Development of the Saratov region. 213 First, fearing they will be ostracized and blamed, rape victims rarely report the crimes committed against them. Results of the survey “Attitude of the Population of Naberezhniye Chelny towards the Problem of Sexual Violence” conducted by women’s organizations in Tatarstan in April of 2000 indicate that approximately one third of the surveyed individuals (21% of women and 39% of men) are of the opinion that it is victims themselves who provoke sexual violence (by wearing provocative clothes, flirting, consuming alcohol, smoking, etc.).293 Statements by focus groups participants supporting this viewpoint were made, but were rare: The fact is that some of my friends and I have also been raped. None of my friends reported to the police but I did and I regret it to this day. I have never been more humiliated, insulted, and condemned than back then. It turned out that I was to blame for what had happened to me. My mother saved me from suicide whereas the police almost encouraged me to commit it.294 Another reason that women rarely go to the authorities with rape allegations is that they perceive the procedure for soliciting evidence as humiliating and ultimately ineffective. The process is as follows: the victim must report the rape to the police in order to initiate criminal proceedings. Once the report is received, a warrant is issued for a special medical examination of the victim. Results of the medical examination and testimony of witnesses are used as primary evidence in rape cases. Frequently, the medical examination result, which proves forced, violent sexual intercourse, is the only evidence supporting the victim’s allegations. Although medical examiners cannot assert whether or not the victim had expressed her consent, they can prove whether the intercourse had been accompanied by violence. As reported by the monitors in the Tula region, the medical examination is sometimes postponed for up to two weeks.295 Third, rape cases are rarely reported is that officers frequently attempt to talk victims out of reporting their crimes officially, saying that it is very unlikely that they will be able to find the perpetrator. For example, in Roslavl (Smolensk region), in cases when rape victims had been attacked from behind and could not see their offenders, police officers advised the victims to refrain from reporting the crime since they cannot describe the perpetrator or assist the police in their search.296 Out of 10 rape-related applications processed by the Rostov public organization “Athena Information Center” in 2001, three petitions were connected with the refusal of the police to begin criminal proceedings for alleged rapes.297 A fourth reason that women do not report rape cases is that state authorities do not provide them with sufficient protection during the investigation 293 294 295 296 297 Regional Report “Discrimination against Women in the Tatarstan Republic—2002.” Information provided by focus groups participants. Stavropol territory. Regional Report “Discrimination against Women in the Tula region—2002.” Regional Report “Discrimination against Women in the Smolensk region—2002.” Report of the Human Rights Commission under the Governor of the Rostov Region, 2001. 214 and court proceedings. As observed by women’s organizations of the Rostov region, when a girl who has been raped reports the crime to law enforcement authorities, the perpetrator’s relatives exert pressure on her to change her testimony. Oftentimes, victims prefer to withdraw their reports altogether claiming that the intercourse was consensual.298 Finally, the majority of women who have suffered from sexual violence do not receive necessary psychological and legal assistance, usually because of the shortage of such services. Practically all the surveyed representatives of women’s organizations and legislators are of the opinion that it is necessary to provide specialized assistance to victims of violence. In some regions, this type of assistance is provided, although women’s organizations note that as of today there are no regional programs targeted to prevent sexual violence. Sometimes, the prevention of violence is confined to establishing women’s self-defense clubs and organizations and publicizing materials about personal security and street smarts for women. The points listed above that account for largely unreported nature of sexual violence also demonstrate that the state neither protects rape victims nor assists in their rehabilitation. 298 Regional Report “Discrimination against Women in the Rostov Region—2002.” ROAD TO EQUALITY AND DISCRIMINATION ON THE BASIS OF SEX L. Zavadskaya PART I THEORETICAL BACKGROUND About Discrimination A good theory is the key to a solid understanding of the present and the future. It facilitates a coherent conception of the problem at hand. The theory of discrimination explains social relations from the standpoint of violation of equality. Discrimination is a social phenomenon which has not yet received adequate formal recognition. It exists, it is discussed and, at the same time, it is not reflected in legal, economic, or political documents and reports, although it has been politically outlawed in clear terms. It would seem that in Europe, discrimination has formally disappeared from modern life but, strange as it may be, it is woven into the fabric of social relations; some people feel its effects without realizing that they are being subjected to discrimination. Patriarchy Out of six billion people inhabiting the earth, 53% are women and 47% men. Politicians, scholars, demographers, and specialists in gender problems speak about women as “the disenfranchised majority.” This can be explained by taking as an algorithm the theory of patriarchy — the theory that postulates dominance control, and use of force of one sex, on the other. The study of patriarchy gives us a window on the past, when dominance of male over female was considered to be a norm of social relations and the “strong” sex asserted its power by violence and control. The time of patriarchy is past but it has left its mark on modern social relations. Patriarchy was a period in the development of civilization when force, power and control (physical and economic) of the strong sex over the weak sex dictated the conditions of life in society. It is a system of ideas, views, traditions, moral norms, measures of responsibility, social relations, and ethnic and legal principles which society supports, shares and maintains in all of public and private life. Patriarchy rejects the ideas of equality and partnership and asserts a hierarchy in relations. Discriminated is rooted in patriarchy. 216 Historically, the power of “patriarchy” is the power of a tsar, prince, patron, warrior, master, husband, father (and often brothers) over a woman who is assigned a secondary, subordinate role. The same role is assigned to a woman by society in our days despite the legally established norm of equality. The role left to the woman is that of a wife, sister, mother, mistress of the house. So-called “outstanding women” are merely an exception that calls greater attention to the rule. The society which recognizes human rights rejects inequality in principle. The system of relations based on the ideology of respect for human dignity rejects patriarchy as a model for gender relations. Rejection of the ideology of dominance of one sex over the other is the clear path to the equality of the sexes. Equality is multi-dimensional: its dimensions are sex, race, nationality, language, and religion, among many others. We can trace the development of equality and its place in social consciousness and life from its identification as a social value through the concrete steps of its realization. The gender aspects of equality are the last to be realized, and are only now entering public consciousness. Discrimination and Inequality In law, discrimination defined as unequal access to a right as a measure of freedom. The different types of discrimination are a subject requiring separate discussion. There are two types of inequality (both of which include gender inequality): inequality of rights which are established by the law and inequality which bars access to equal opportunities.. Therefore, rights and opportunities are an indicator of equality. The presence of inequality therefore testifies to the existence of social systems which fuel discrimination, by limiting citizens’ opportunities to exercise the rights on which their equality is founded. Both systems of discrimination are interconnected and, at the same time, are separate from each other. The former type is characterized by the norms which produce patriarchal views on the human beings — man and woman — in society. The second type reinforces the traditional ideas about the position of the two sexes through a system of legislative provisions in constitutions, codes, laws, regulations, and instructions which constitute the official views of the state on equality and its realization. Sometimes, the state supports the traditional gender roles with the best intentions, without suspecting its complicity in the reproduction of discrimination and patriarchal views. Examples can be cited from labor law, where “benefits” cancels out equality and “ban” sometimes means exclusion from equality on the basis of sex. Differences Based on Sex Differences do not necessarily mean inequality. They must be taken into account but at the same time must not bar access to a right and corresponding opportunities. Differences should differentiate, not prevent access. Women have a special status in society, which is primarily determined by their reproductive function. 217 Discrimination is connected with patriarchal views, primarily on the role of the mother, who, according to these views, must belong to the home and family. Traditional ideas do not accept equality and in modern society this problem must be addressed by all available means. Today, the greatest danger is discrimination in everyday life through the most tightly closed structure of society — family, tribe, and clan. Discrimination is consolidated through stereotypes, traditions, customs, legends, ethics, morals, family values, and generally through the norms of behavior. Discrimination in everyday life is very difficult to overcome. The doctrine of equality is the doctrine of free people — both men and women. It is an ideology of freedom under new civilization, which is rooted in traditions feeding the idea of equal opportunities for the two sexes. The equality of opportunities is laid down by the Constitution of the Russian Federation (Article 19) and, therefore, its observance is mandatory. If the lawmaker believes that the equality of the two sexes has been achieved, then, as a consequence of this, the need of a policy of support for women becomes obvious. Recognition of the fact that an effective equality, specifically equality of rights between the sexes is non-existent shifts the solution of this problem into a different plane — adoption of antidiscriminatory measures in the sphere of opportunities and rights. This concerns not only the policy but also the legislative strategy in the sphere of rights and liberties of two subjects, men and women, and the appropriate judicial practices. The well developed legislation in the field of the rights of women in Russia is generally directed to overcoming the discrimination. However, numerous problems stemming from traditional patriarchal ideology still obstructs actual equality. The 1993 Constitution of the Russian Federation has established a legal standard of equality; the way to compliance with this standard is a system of anti-discrimination protection measures. PART II CONSTITUTIONAL PRINCIPLES OF EQUALITY IN SOVIET AND POST-SOVIET RUSSIA (1917—1993) The constitutional legislation allows one to understand the main views of society (Soviet and post-Soviet, Russian) on equality. Up to 1993, the constitutional principle of equality, including the equality of the sexes, in Russia had three measurements: a class-proletarian measurement, which was laid down in the first Soviet Constitution adopted in 1918, an exemplary-socialist measurement, which was reflected in the Stalin’s Constitution of 1936 and a distributive measurement in the 1977 Constitution of the USSR. Equality is a main goal of the socialist system. Universal equality has always been considered an idea of socialism. Special emphasis was placed on the gender problem — the equality of the sexes based not on the physiology but on other, social, cultural and ethnic indicators, the roles played by the two sexes in society. 218 In all constitutions listed above the subject of women is developed somewhat separately from the general problem. The 1917 resolution allowed the woman to shed legal dependence and become a de jure free citizen. In 1918, equality was proclaimed as a proletarian idea, dictated by purely class views on this problem. The equality of all people based on class affiliation determined the state on the equality regardless of sex. The idea of equality of all people on the basis of class (in other words, proletarian) affiliation was characterized by a series of exceptions which annulled the entire concept of equality, including that of the sexes. The exceptions from equality were made in accordance with the indicators of fundamental importance: class, party, estate affiliation, etc. In the 1918 Constitution the principle of equality of the sexes was based on one and the only idea: to allow men and women enjoy equal rights. However, the equality of the sexes was limited by the idea of equality on the basis of proletarian origin. This made this standard, an ideal of the revolution, meaningless because of endless exceptions. Equality and Freedom are universal in any dimension: they form the basis of the doctrine of Human Rights, which was not integrated and adopted in the young Soviet state. The situation described above entailed disastrous consequences. Equality, including the equality of the sexes, was excluded from the universal catalog by the very formulation of the problem. The level of understanding of the problem was such that the equality of men and women was defined as a standard equal to the male standard. The 1918 Constitution declared that “the woman has equal rights with the man.” It cannot be denied that this was already an important victory. At first glance, inequality was eliminated. The Bolshevik revolution established the equality of the sexes and this was proclaimed in the 1918 Constitution and in several legislative acts. There was one reservation: in a peasants', proletarian, patriarchal country there was no actual equality of the sexes. For almost twenty years, equality was presented as an accomplished fact. It was simultaneously a myth and an embodiment of the victory of the proletarian over the old times. Equality of the sexes became the slogan of the party, proletarian revolution and establishment of the Soviet state. Almost two decades later, the 1936 Constitution reproduced and developed the postulate of equality, including the equality of the sexes. The idea of equality of the sexes was asserted through the concern of the state for women. The Leader, Party and State acted as patriarchs playing the main role in the life of the family and woman. The support rendered to the family through a system of allowances and “benefits” to which women were entitled did not allow the head of the family, the man, to be a patriarch in the family. The man was not economically independent and, therefore, was not economically powerful. The economics of the country and of the family were intertwined so that the Leader and the State were responsible breadwinners for all. Stalin’s Constitution was the embodiment of the strengthening totalitarian state, the bulwark of the subordination regime. The family was controlled not only through a system of benefits but also through repression. Repres219 sion affected many families and in this sense the equality of the sexes was achieved by means of accusatory formulas ChSIR and ChSVN (Russian acronyms meaning respectively “member of the family of a traitor to the homeland” and “member of the family of a people's enemy”). In Stalin’s Constitution, the man did not figure as a subject of constitutional relations: otherwise he would be competitive with the Leader. In the history of the Soviet legislation, the man is a very weak, legally bleak figure compared to such a subject of law as the woman-mother. The man of that time is insignificant as a personage in the history of the equality laws. Husband, family and children are not the triad in which the state was interested. The man viewed from the standpoint of the concern for him is not interesting and politically incomprehensible in a backward and essentially peasants' patriarchal country. Stalin’s Constitution makes practically no mention of the husband, man.. Equality of the sexes was destroyed through exclusion of one sex and absence of any mention o this sex in the Fundamental Law of the country. Repression strengthened and negated the very idea of a right as a standard of freedom and dignity equal for all people. Stalin’s period was an importance stage in the “concern” for equality and, paradoxical as it may seem, simultaneously generated the idea of positive discrimination on the basis of sex (benefits, allowances, support) rather than on the basis of elimination of the causes of discrimination against women. Since that time, “concern” has become a part of the “strong” policy in respect of the “weak” sex, which is pursued today mostly in respect of women-mothers. The period described above was the most tragic stage in the history of Russian equality and the equality of the sexes in particular. It was characterized by hypocrisy and a disease known as “pseudo-equality, always and in everything, at any price” and ended in the late 1960s, well after the Leader's death. The third stage in the development of the idea of equality in the Soviet constitutional legislation was marked by “developed socialism” and the 1977 Constitution. The 1970s were the time of the distributive equality, tinted by the idea of the final victory of socialism and the achievement of equality of everyone and everything. The idea of the equality of the sexes was reaffirmed and found its expression through the system of positive discrimination: guarantees, benefits, allowances, the state's concern for the family and the woman and, by contrast, in only one constitutional norm which concerned the husband-father. The system was based on the ideological supposition of the equality of all people in the distributive relations under the conditions of developed socialism. The state distributed the essentials and thereby controlled their receipt through a standard of equality. The living standards were uniformly controlled through a system of payment “by labor” and through other channels. The gender equality, i. e., equality of the sexes determined through socio-cultural roles of the two sexes in society was “achieved” by means of a system of support through public consumption funds rather than by means of economic regulators. The structure of the economy was so relative that it allowed the Party and the Leader to do whatever they thought necessary. It occurred to nobody to raise the question of discrimination on the basis of sex since the idea of equality was not discussed but 220 instead taken for granted and accepted as a dogma by the whole Soviet society. The illusion of the equality of the sexes did not rely on nothing. Over fifty years, this myth was firmly established in the minds of Soviet people. The idea of equality was exploited as a strong slogan at all party congresses, manifestations, meetings, in the life of Soviet society and separate collectives. The idea that equality has been achieved nipped any criticism in the bud. Even dissident literature did not contain the general postulate of equality because it concentrated on the struggle for freedom. The principle of equality, including the gender aspect, was formulated in the 1977 Constitution as a fait accompli. In the 1977 Constitution the guarantees of equality were based on the idea of the “equality of distributed opportunities” but they were addressed to the woman and, through her, to the family. The 1977 Constitution did not raise the ideas of the gender equality and even obscured the problem of discrimination on the basis of sex, a problem which was difficult to expose but remained unsolved. The principle of the constitutional equality in the 1977 Constitution is very convenient for consumption. It offered many guarantees, very good ones so far as distribution was concerned. They were connected with the possibilities of the socialist economy. However, these guarantees were dependent on distribution in the conditions of non-functional mechanisms of the socialist economy. In the 1990s, distribution and re-distribution is taking place in the Russian society through market mechanisms. This is the first condition for the realistic guarantees of equality. Any other approach is doomed to remain an illusion, pleasant as it may be. The collapse of the socialist economy was predetermined as was the idea of socialism and its main value — that of equality. It would seem that Soviet socialism is dead and, therefore, equality, including the equality of the sexes and the very idea about it in its Soviet interpretation should have died together with the corresponding economic and social ideas. However, this has not happened. The myth about the achieved equality of the sexes has survived and lives on now to the beginning of the third millenium. It has become part of our reality and it is very difficult to overcome it in the contemporary Soviet society. In contemporary history there was one more shift in the development of the idea of equality of the sexes. In 1992, the Supreme Soviet of Russia introduced an amendment to the text of the 1977 Constitution which abolished the guarantees of equality and de facto released the state from the responsibility to the woman for achievement of equality in the sphere of opportunities, rights and liberties. From 1992, the path to equality has acted on a familiar principle: “the man and the woman have equal rights.” It was only by a constitutional amendment that it was recognized that the equality of rights was achieved and there can be no question of any additional systems for assurance of equality, such as assurance through guarantees of equal opportunities. The 1992 constitutional norm about the equality of the sexes was based on the idea that only legal equality can be achieved. The guarantees as possibilities of the socialist re-distribution system were excluded. The socialist regulators did not work and, as a result, the system of guarantees to women, primarily women-mothers, became unworkable. 221 Opportunities and their equality as guarantees on the part of the state have become part of history — the history of a totalitarian state and the dependence of people — men and women — on this state. The choice was made in favor of the freedom of a human being. And in the conditions of freedom, equality is qualitatively different. Gender equality can be achieved through the struggle for such equality rather than for a myth of achieved equality. It is necessary to fight against the widespread idea that social guarantees must be tied in only with the woman. Gender equality must be real, must not be connected with the illusion of support and concern and must have nothing to do with the myth about equality. The equality of rights in Russia is practically undisputed (although I believe that here, too, there are some grounds for a dispute). It is the equality of opportunities for both sexes that is a real subject worth of study. The equality of opportunities in the world of the free economy is not a guarantee for women like those who lived in the Soviet time. Equal opportunities for the two sexes in society are connected with the real understanding of the problem. The socialist guarantees became a thing of the past but, despite the presence of patriarchy and discrimination on the basis of sex in the world of freedom, people still cling to the myth of equality. The laws on equality must fit into the framework of real economic relations. Equal rights and opportunities for men and women must reflect the political spectrum of the new time, the time of change. The Constitutional Assembly and the Constitution of 1993 corrected the mechanism of achievement of gender equality through a two-sided system for its assurance: the equality of rights and the equality of opportunities. It is this approach that cuts off discrimination and the state must act as a guarantor of this promising constitutional norm. The equality of rights is already a victory over patriarchy. The equality of opportunities for the two sexes in the conditions of freedom can be achieved by means of real measures in the fight against discrimination, patriarchal views and relations in the economy, politics, everyday life, where the woman is dependent on the stereotype of submission to the man. The equal position of the two sexes in society may be real only when the state ensures the realization of the standard of “equal rights and opportunities” through a system of antidiscrimination measures, including legislation. If the state admits that equality has not been reached, it must take measures to achieve equality in accordance with the Constitution. There must be different measures and they must be reduced to the procedures for assuring and guaranteeing equality, “equal rights and opportunities.” Whereas equal rights are laid down in the Constitution of Russia and various legislative acts, equal opportunities as procedures for achievement of equal rights have merely been declared and a great deal has to be done in the future to introduce them in society, in real socio-cultural relations. The constitutional norm about gender equality (Part 3, Article 19 of the RF Constitution) is methodologically correct and does not raise any doubts about our understand of equality not only as legally established rights of men and women but also the exercise of the rights in practice. 222 The life in society without traditions is impossible. However, if the tradition violates the constitutional standard we have to oppose such tradition running counter to our own ideas of equality incorporated in the Constitution. The tradition of patriarchy is dangerous for two main reasons: first, it contradicts the ideology of equality of rights and, second, it destroys the basis of the policy of gender equality by distribution of benefits instead of the use of economic levers of equality. In 1993, Russia adopted its new Constitution and by proclaiming that “the man and the woman have equal rights and liberties and equal opportunities for their exercise” assumed an obligation to follow these principles. A new shift in the comprehension of the equality of the sexes demonstrates that the old stereotypes have been broken and, hopefully, the corresponding myths have been abandoned. This shift has been written into the new paradigm of the individual right as a measure of freedom of equal subjects irrespective of sex. PART III POLITICAL RIGHTS IN THE CONTEXT OF GENDER EQUALITY Legal Protection of Equal Opportunities in the Exercise of the Right to Be Elected. Problems and Search for Solutions The political rights laid down by the 1993 Constitution are free from gender asymmetry. They clearly reflect the doctrine of the equality of the political rights of men and women. This constitutional norm is universally accepted and indisputable. It fully conforms to the ideas accepted by society about the right and opportunity of the two sexes to elect and be elected and to the universal international standards in this sphere. Article 32 of the Constitution of the Russian Federation fully corresponds to Article 25 of the International Covenant on Civil and Political Rights: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. The constitutional right to vote is also laid down by the current legislation. This right is realized in practice without any gender asymmetry. So far as the right to be elected is concerned, the public shares this right at the legal-normative level (as confirmed by the adoption of the Constitution by the popular vote). However, in the course of elections the public casts doubt on this right in respect of women. This is confirmed by the 1999 parliamentary elections where a mere 7.8% of votes were cast for women who ran for the State Duma. The elections demonstrate the adaptive na223 ture of the constitutional principle of equality and of the degree to which the public shares this principle de facto. In real political life, the woman is actually denied the right to be elected. This right is realized in the political relations with great difficulties but in the course of elections it retreats before the stereotype of men being the only participants in the exercise of power. Therefore, the standard laid down by the 1993 Constitution of the Russian Federation is not upheld in real life. We know nothing about the Russian judicial practice in the sphere of protection of persons who suffered discrimination on the basis of sex in the course of elections. Given the general provisions of the election laws and the absence of a matrix allowing discrimination to be established in a concrete case, it is difficult to develop the tactics of judicial protection of the right of women to be elected. In the context of the traditional legal regulation this access is duly ensured. The law made men and women equal and they may be elected without any exceptions. However, they have this right but do not enjoy equal opportunities to be equal in the access to power. As was mentioned above, four years ago 7.8% of women and 92.2% of men received mandates of deputies of the Sate Duma of the Russian Federation. It is this statistical data that must be used as a basis when searching for methods of judicial protection of equality and struggle against discrimination. It must be admitted that the law has not been violated. The constitutional norm (Article 19) has been observed as regards the equality of rights of the two sexes, i. e., in principle, the right of women and men to be elected is not disputed from the standpoint of rights. However, what is or may be disputed is Part 3 of this Article, i. e., the constitutional requirement about “equal opportunities” for the two sexes. However, how can one, at the level of court protection, successfully reconcile the violation of the constitutional principle of equal opportunities and the violation of a subjective right of a woman to be elected? This can be done only if the court accepts the argument offered by the statistical data, which is highly improbable. The court is used to see the paradigm of the “freedom of election” and closes its eyes to the paradigm of “equal opportunities.” Is it logically acceptable that the “freedom of election” will be restricted by equality? From the liberal point of view the freedom of election is not restricted if it is not abused and equality does not compete with freedom. The voter is free to elect any candidate regardless of the gender characteristics. Today, this is the main thesis by which the court abides. However, there is a serious reservation connected with the official recognition of discrimination in society. The UN Convention on the Elimination of All Forms of Discrimination against Women stipulates in Article 3: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Apparently such measures may include introduction of quotas, because, according to the Convention, “Adoption by the State Parties of temporary special measures at accelerating de facto equality between men and 224 women shall not be considered discrimination as defined in the Convention” (Article 4). Introduction of quotas will make it possible to defend the rights and opportunities in courts, if the quotas are not observed. The Convention has been ratified but the attitudes towards establishment of gender quotas is negative. There are no definite formalized standards showing violation of the equality with regard to the access to a right. However, victims must not be denied protection merely because the court is not used to protecting “equal opportunities.” Victims can be protected if, for instance, we cite concrete cases where such opportunities were denied in the course of elections during the struggle between competitors — a man and a woman. The measure of equal opportunities is rather subjective but the fact of discrimination is quite concrete. When an application is brought to a court in connection with the fact of discrimination it is necessary to pay attention to the norms of material law. In particular, they pay attention to to Part 3, Article 19 of the Constitution of the Russian Federation, the clause of the election legislation guaranteeing “equal rights and equal opportunities” for the two sexes and to the clause of the criminal legislation which establishes punishment for violation of the principle of equality. The material legislation also includes the International Convention on the Elimination of All Forms of Discrimination against Women which has been ratified by Russia and, by virtue of Article 15 of the Constitution of the Russian Federation, is “an integral part of the Russian legal system.” The presence of an adequate legislative base is already a victory because it makes it possible to fight against discrimination from the position of the protection of equal opportunities. The second key requirement for such protection is gathering evidence in a concrete case. The evidence must be sufficient to convince the court of the presence of discrimination on the basis of sex against one of candidates in the course of election in a specific electoral precinct. There may be difference kinds of evidence proving discrimination: provocative leaflets, audio and/or video recordings of candidates running in the election race which contain sexist statements affecting the honor and dignity of a person, brochures expressing such views which are distributed during the election campaign, etc. Thus, many different kinds of evidence may be used but all evidence must confirm that there has been a fact of discrimination on the basis of sex rather than for some other reasons. The evidence in the case must include all information which proves that “sex” specifically was the basis of discrimination. Such approach opens the way to real court protection. ANTI-DISCRIMINATION ASPECT OF INTERNATIONAL LAW N. Kravchuk The very first international human rights documents already contained provisions prohibiting discrimination against women. The Preamble of the Universal Declaration of Human Rights adopted by the UN on December 10, 1948, notes that the Declaration is to be viewed as a standard to which all peoples and states should aspire. While not a legally binding treaty, the Declaration has nevertheless become a key source of not only international but also national law, and it serves as a model widely used by numerous countries for their Constitutions. Article 2 of the Declaration states that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In the ensuing 50 years, all international and national antidiscrimination law has grown out of this Article. The next phase was marked by the adoption in 1966 of the so-called twintreaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Further to the principle asserted by the Universal Declaration, the Covenants contain articles prohibiting discrimination on any grounds, including discrimination based on sex. The concept of “discrimination” as defined by the Universal Declaration and two Covenants has acquired new dimensions, particularly in relation to the issue of equal rights. Both science and law are now looking at the “negative” and “positive” varieties of discrimination, depending on its intentions and consequences. Under this approach, negative discrimination is understood as any kind of impairment of rights, while positive discrimination manifests itself in the form of various privileges and advantageous treatment. Both negative and positive discriminations can be not only direct, i. e., incorporated into laws (de jure discrimination), but also indirect, i. e., emerging in real life (de facto discrimination). In their attempts to eliminate de facto discrimination, states must abstain from discriminatory actions or practices of any kind. In addition, states must ban discrimination against women by individuals or organizations.1 At a certain phase of its development, international law singled out socalled collective rights. These are special rights of those categories of people who, due to social, political, physiological, or any other reason have not had the same opportunities to exercise rights and freedoms common to all 1 The United Nations and International Law (American Society of International Law and Cambridge University Press: 1999, p. 194). 226 people and, by virtue of this, need particular support from both the government and the international community. The range of subjects of such rights is fairly wide and includes minors, retired people, the handicapped, the unemployed, refugees, ethnic minorities, etc. Women also belong with the vulnerable groups listed above and need special protection from the government because they, primarily for physiological reasons, do not have the same opportunities as men in enjoying human rights and freedoms. In addition to a number of legislative acts of a general nature that have effect on the situation of women, the UN has also adopted several specialized documents aimed to regulate this particular category of subjects of law. Thus, in 1967, the UN adopted the Declaration on Elimination of Discrimination against Women and, in 1979, the Convention on Elimination of All Forms of Discrimination against Women. The latter Convention (CEDAW) establishes general principles and measures to ensure equal rights for women throughout the world. Under Article 29 of CEDAW, any dispute between two or more member States relating to the interpretation or application of the Convention that has failed to be resolved by negotiation shall be submitted for arbitration, upon request of either party. In the event that the parties are unable to come to an agreement on the arrangement of such arbitration within six months, either party can refer this dispute to the international court by filing an application in accordance with the status of the court. The USSR ratified CEDAW in 1980. After the dissolution of the Soviet Union, the Russian Federation became its successor under international treaties and agreements, including the aforesaid Convention. Functioning within the framework provided by the Convention on Elimination of All Forms of Discrimination against Women there is a Committee whose tasks include the review of periodic four-year reports of member States on legislative, judicial, administrative and other measures taken to implement the provisions of CEDAW and on the progress achieved in this field.2 On October 6, 1999, the UN General Assembly approved an Optional Protocol to CEDAW (also binding on the Russian Federation) that gives individual women and women’s NGOs the right to file individual complaints about violations of the Convention. Complaints may be filed with the UN Committee for Elimination of Discrimination against Women by individuals, groups of individuals, or organizations that have suffered damage or have been otherwise affected as a result of a violation of the rights contemplated in the Convention. The adoption of CEDAW in 1979 has raised the task of leveling the rights and opportunities of men and women to the level of international law. For the first time, an international document was specifically devoted to this issue. However, in the course of the World Conference on the Situation of Women (Nairobi, Kenya, 1985) it became clear that the ratification of the Convention had not fully helped to accelerate the economic progress of developing countries, which should have allowed to expand the scope of women’s involvement in the processes of economic and social development. The Nairobi Conference also made a substantial contribution to the interpretation of the concept of “equality of the sexes.” Since then, equality has 2 Winter J, Human Rights and Human Wrongs. A Guide to the Human Rights Machinery of the United Nations (British Irish Watch: 1999, p. 73). 227 started to be viewed not simply as a legal concept, i. e., de jure elimination of discrimination, but rather as the rights, responsibilities and opportunities for women to be involved in the process of development not only as an active force, but also in the capacity of recipient of its benefits.3 The issue of violence against women both during military confrontation or armed conflict, and at times of peace was included for the first time as a separate item on the agenda of the World Conference on Human Rights held in Vienna in the summer of 1993. The documents adopted by the Vienna Conference declared that violations of women’s rights in situations of armed conflicts constituted violations of fundamental principles of international law in the fields of human rights and humanitarian law. The Vienna Conference’s Declaration also emphasizes the importance of working to stop violence against women in social and private life, the elimination of all forms of sexual infringements, the exploitation and illegal trading of women, and the elimination of the harmful consequences related to certain traditional or customary practices, cultural prejudices, and religious extremism. The Vienna Conference recommended the General Assembly to adopt a Declaration on Violence against Women, and firmly called upon States to fight this phenomenon. In the same year, 1993, the Declaration on Elimination of Violence against Women was adopted. In this Declaration, UN member States assumed the obligation to include in their human rights reports filed with the UN, information on violence against women and measures taken to eliminate it, along with a review of trends in this field. In addition, the UN Commission on Human Rights appointed a special rapporteur on violence against women. The Fourth World Conference on the Situation of Women (Beijing, 1995), attended by as many as 35 000 women participants from all over the world, noted a regression in the progress of women’s rights all over the world. This was caused, among other factors, by the lack of effective controls on the performance of States and their obligations in the field of women’s rights at both international and national levels. The Conference developed proposals aimed to help bridge this gap by the international community and by each State that had ratified the Convention on Elimination of All Forms of Discrimination against Women. To note, following the Beijing Conference, the Russian Federation adopted a “Concept for Improvement of the Situation of Women in the Russian Federation,”4 and set up a Commission to support concerted efforts by both federal executive bodies and executive bodies aimed at the improvement of the situation of women. The problem of rooting out discrimination against women is reflected in the work of a range of specialized UN institutions that perform legislative functions in various fields of human rights protection. Some of these UN institutions also have international supervisory authority. The UN Commission on Human Rights is the key human rights body of this system. Every year the Commission reviews, in relation to various items on the agenda, issues of women’s rights, such as trafficking of women and girls, 3 S. Polenina, Rights of Women in the System of Human Rights: International and National Aspects (Moscow: 2000, p. 10). 4 Resolution of the RF Government dated January 6, 1996. 228 elimination of violence against women, or integration of women’s rights into the UN system.5 We should also mention the International Labor Organization (ILO). Convention #100 on equal compensation for men and women for work of equal value, adopted by ILO on June 29, 1951, and ratified by the USSR on April 4, 1956, established for the first time the legal principle that compensation rates for work of equal value must be set with no discrimination based on sex. Notably, the Convention specifies that compensation includes regular, primary, or minimum wages, and any other compensation provided directly or otherwise in cash or in kind by the employer to the employee for the work performed by the latter. * * * The Universal Declaration and the two International Covenants (ICCPR and ICESCR) have provided the foundation for the development of regional human rights protection systems in Europe, America, and Africa. The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention, November 4, 1950) is a regional legal agreement, under which most European states, including Russia, have assumed obligations to honor basic human rights. The European Convention has been universally recognized as one of the key documents in the context of contemporary international law, because: • • it has established the first international procedure for filing complaints, and the first international court to review issues related to human rights violations; it has lead to the development of unprecedented and significant judicial practice.6 Article 14 of the European Convention, in line with Article 2 of the Universal Declaration, confirms the prohibition of discrimination based on sex among other types of discrimination. For a long time, this legal norm was only supplementary, i. e., a complaint about the violation of the prohibition of discrimination could be made only jointly with a complaint about the violation of another right granted by the Convention. However, in recognition to the extraordinary importance of this provision, supplementary Protocol 12 to the European Convention was adopted on November 4, 2000, according to which a complain about the violation of the prohibition of discrimination can be filled on its own merit. To date, this protocol has not yet become effective. The efficacy of the European Convention is based upon two factors. Firstly, the Convention is an agreement binding upon the states that have adopted it. Secondly, the Convention has established an international legal mechanism that makes it possible to complain against violations of the Convention’s provisions committed not only by States but also by individuals and organizations. Since rulings of the European Court of Human Rights, based in Strasbourg, are binding upon the states to which they relate, the Con5 Human Rights Reference Book (Netherlands Ministry of Foreign Affairs, Human Rights, Good Governance and Democratization Department: 1999. p. 91). 6 Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford University Press Inc., New York: 1996. p. 571). 229 vention and the jurisprudence of the European Court also constitute the basis for legal regulation of the situation of women on the national level. The Convention aims to protect civil and political rights. Social, economic, and cultural rights are regulated by a separate regional legal document, the European Social Charter adopted on October 18, 1961. The European Social Charter reiterates a number of provisions of the ILO Conventions regarding protection of labor rights of women employees: the right to equal compensation for equal work; the right to maternity leave; the right to breast feeding breaks, etc. (Articles 4, 8). The difference between these two pan-European conventions is significant as the Charter provides no mechanism for individual complains against violations of rights granted thereby. The European Social Charter is not yet ratified by the Russian Federation. While being regional documents from the perspective of international law, the European Convention and the European Social Charter have made a weighty contribution to the unification of European regulations governing human rights, including gender equality. This is evidenced, among other things, by the fact that since the early 1970s the European Court has issued more than 50 rulings intended to facilitate the implementation of the principle of equal rights of men and women. We should also mention in this regard the European institutions working to protect women’s rights. The objective of the European Committee for Equality of Men and Women is to ensure equal opportunities for women in all functions of the Council of Europe. The Committee is involved in researching the situation of women in the European community and facilitates cooperation between the Council of Europe and its members in this field. The European Committee for Equality of Men and Women has a very broad mandate covering drafting of resolutions, follow-up actions on adopted resolutions, and collaboration with various bodies of the Council of Europe.7 The Constitution of the Russian Federation reiterates the principle of nondiscrimination based on sex (Article 19). In addition, Russia has ratified the dominant majority of international human rights documents listed above, and submits performance reports on its international obligations, including those on the rights of women. 7 Human Rights Reference Book (Netherlands Ministry of Foreign Affairs, Human Rights, Good Governance and Democratization Department: 1999, p. 92). THE PLIGHT OF WOMEN IN CHECHNYA O. Trousevich Women continue to be one of the most vulnerable and discriminated against groups in Chechnya. They have not only fallen victim to the “second Chechen war,” but also have become increasingly involved in the conflict.1 Contrary to the established stereotype of the “oppressed women of the East,” Chechen women have been known play an active role in local societal life, both in pre-Soviet and Soviet times. Now and again, they have been targeted for their pro-active social involvement in present-day Chechnya. By way of example, the night of November 29—30, 2002, saw the killing of M. Oumzhayeva, former head of the Alkhan-Kala administration, of the Grozny (rural) district. She had held that position from June 2001 through September 2002.2 Her house was raided by four Russian servicemen, who proceeded to perform an unwarranted search. Shortly afterwards, they walked M. Oumzhayeva out into the backyard and shot her death. Oumzhayeva’s killing should be categorized as a political murder carried out by agents representing the federal power. Oumzhayeva, head of the local council of elders (an informal traditional structure), had been nominated by the residents of Alkhan-Kala to fill the position of the head of local administration. Ignoring threats from members of the locally deployed federal forces, she had stood up for the interests of the locals, thereby growing to be a public figure conspicuous in Chechnya and elsewhere.3 * * * Massive and indiscriminate bombings and shelling,4 which resulted in a heavy loss of civilian life, ended in the Chechen Republic as far back as the 1 Publications on the plight of women in the Chechen Republic have been rare and far between, the issue failing to be in the focus of specialized public debate. For detailed description of the state of things in the initial stage of the “second Chechen war” please see: “On the Status of Women in the Territory Engulfed by the Armed Conflict in the Chechen Republic Within 1999—2000” in Human Rights in Russian Regions (Moscow: Moscow Helsinki Group, 2000). 2 For more detail see “Malika Oumzhayeva Killed by Federal Forces” on the “Memorial” website. (www.memo.ru) 3 She attracted the attention of the Los Angeles Times, Novaya Gazeta, Noviye Izvestiya and other major periodicals. She was asked to come to Moscow and attend a conference (held November 9—10, 2002) on finding the way to assure a peaceful solution to the armed conflict in Chechnya. 4 See, for one, Human Rights and Humanitarian Law Violations in the Armed Conflict in Chechnya, Issue 1. “Pinpoint Strikes: Indiscriminate Use of Military Power by Federal Forces: September-October 1999.” Report by the “Memorial” Human Rights Center. (Moscow: “Zvenya,” 1999). 231 first half of the year 2000. It was then that the killing of civilians (including women) was reported when the federals “combed” the local communities.5 However, these mop-up operations were staged again and again (with some communities being “cleaned up” 20—30 times). Notably, the raids were accompanied not only with burglaries and beatings, but also with shooting that inevitably produced fatalities and wounded, some being women (they often attempted to intervene, believing that the military would not dare use their weapons). On January 14, 2001, in the course of a regular mop-up operation in Stariye Atagi,6 during which Russian servicemen tried to detain 37-yearold Kh. Elzhourkayev (an invalid suffering from TB) on the grounds that he possessed old newspapers, one of which (Ichkeria) featured a picture of A. Maskhadov, President of the Chechen Republic of Ichkeria, some of the local women suffered badly for standing up for the disabled man. While being fearful that Elzhourkayev might just “disappear” following his detention, the women demanded they be told what the local disabled man was being charged with. With no answer being provided, the women moved and forcefully wrested Elzhourkayev away from the soldiers, then encircled him. In response to the women’s fierce resistance, the soldiers beat them up, and used tear gas and weapons against them. One woman was shot to death, with others receiving bullet wounds, assorted injuries, and chemical poisonings. Also, Chechen women often sought to stick up for their loved ones in the course of so-called “special operations,” when uniformed federals would arrive aboard their armored vehicles after dark and carry away some of the local residents, who often “disappeared” without any trace. To provide another example, April 20, 2001, around 5 a.m., a federal military team arrived at the house of A. Jaoubatyrova (born 1957) in Alkhan-Yourt, Urous-Martan district, and picked her up. Following these circumstance she has never been heard of again.7 Having broken down the door and a window, the military raiders rushed into the rooms and opened fire. Completing their unauthorized search and finding nothing impermissible, they detained M. Elsiyev, Jaoubatyrova’s son. Notably, the military declined to explain of what he was suspected. After Jaoubatyrova started to aggressively press on with her demands and cries for help, she was also detained. When approached by the relatives of M. Esiyev wanting know his fate, officials from all local law enforcement structures said they had nothing to do with the incident. Subsequently, some of the relatives managed to find out informally from a source at the local district administration that the detention had been performed by members of the district FSB (Federal Security Service) office, and that the detained had been dispatched over to Khankala. Alarmingly, though the relatives approached the local military 5 In particular, in Grozny, Staropromyslovsky district and Noviye Aldy, the latter case being extensively covered by Human Rights and Humanitarian Law Violations in the Armed Conflict in Chechnya, Issue 2 “Combing Operations: Premeditated Crimes Against Civilians.” Report by the “Memorial” Human Rights Center. (Moscow: “Zvenya,” 2000). 6 For more detail see Human Rights and Humanitarian Law Violations in the Armed Conflict in Chechnya, Issie 2 “Counter-Terrorist Operation: Stariye Atagi — September 1999 — May 2002.” Report by the “Memorial” Human Rights Center. (Moscow: “Zvenya,” 2002). 7 Human Rights in Russian Regions — 2001 (Moscow: Moscow Helsinki Group, 2002). 232 prosecutor’s office, republican administrative and law enforcement authorities, they could not fix the exact whereabouts of their loved ones. Quite frequently, the dead bodies of the “disappeared” persons have been uncovered. Alas, it is often too difficult to identify them, due to the numerous injuries and wounds sustained from either torture or gunshots, or grenade explosions. This explains why not all of the remains are easily identifiable. However, there have been a few cases where the dead bodies were identified. On the night of January 27—28, 2003, in Urus-Martan a team of armed men seized S. Khourikova (Tsagareva) (born 1977) in her own house about 300 meters away from the local commandant’s office.8 Though the very next day her relatives approached all local law enforcement offices, including the prosecutor’s office of the Urus-Martan district, their applications and pleas were to no avail, with any and all officials denying their involvement in the matter. On February 10, 2003, on the edge of the village of Belgatoy, Shali district, locals came across the dead body of a young woman — armless, decapitated, and with numerous traces of torture. The body was speedily moved to the local mosque where it was left lying for three days. It was then buried, the remaining clothing kept preserved as possible help in an identification effort. A few days later the village was visited by the victim’s relatives, who immediately recognized the clothing items that their loved one used to wear. When the body was exhumed on February 21, it was quickly recognized as that of S. Khourikova. A few years before, S. Khourikova’s husband (a local Islamic school teacher) was killed in 1999 during a bombing of Urous-Martan, while her brother M. Tsagarev (a field commander) was killed in 2001. However, it would be foolhardy to conclude that Chechen residents fall victim to summary executions exclusively on account of their being linked with individual extremists or the forces of resistance as a whole. As an armed conflict continues, all kinds of people lose their lives. Z. Javatkhanova, for one, 35 years of age, from the village of NokhchiKeloy, Shatoy district, mother of five children and pregnant with yet another baby, was killed January 11, 2002, by members of the Russian special forces as she was returning home from Shatoy, where she had been to see the doctor about some particulars of her pregnancy.9 On the morning of January 11, 2002 a special operation was launched to comb the rural communities in the south-eastern corner of Shatoy district. A landing party of troops was delivered to the village of Dai.10 The commandos arranged an ambush, which they effectively used to fire upon a Jeep-like vehicle as it moved down the street with six people in it, one of those being Javatkhanova. Three persons were killed, three others (including one woman) were seized, carried away, questioned, tortured, and killed. Their dead bodies were thrown into the off-road vehicle and torched.11 8 Fore more details see “New Reports of Uncovered Dead Body of Female Abducted by Federal Forces.” (www.memo.ru) 9 For more detail see “Tragic Events in Shatoy District in January 2002” (www.memo.ru). 10 Leading the team was Colonel V. Plotnikov. 11 All of the killed were civilians: school principal — 65 years of age; executive secretary — 44 years of age; forester — 44 years of age; driver — 45 years of age; young man — 31 years of age. 233 To add, Chechen women have frequently been sexually violated as well. However, such crimes not only fail to be investigated, but they even get passed over in silence. This can be explained by the prosecutors’ clear reluctance to look into such cases, and also due to the fact that this topic has traditionally been “taboo” within the ethnic communities populating the Northern Caucasus. November 11, 2002, a team of servicemen illegally detained five persons (a taxi driver and four passengers) at a checkpoint on the edge of Shali.12 Shortly thereafter, three of the five people were released. The two remaining passengers (both females that had been raped by the checkpointmanning soldiers) were also then let go. Following that incident, the two male passengers, V. Agouyev and Kh.-M. Aboubakarov, “disappeared.” Alarmingly, the prosecutors not only chose not to prosecute the criminals, but even refused to do so following the express intervention in the matter by the Human Rights Center “Memorial.”13 Now and again, the materials released following prosecutorial inspectionruns have become shockingly cynical. Here is what the local prosecutors had to say as part of their oversight coverage of two mop up operations at Stariye Atagi:14 Following in-depth research into the circumstances related to the applications on the matter of the attempted rape of female residents of the given community by the said servicemen, no hard evidence to that end has been established. As is clear from the depositions by M. M. I., M. T. I., I. L. S. and K. M. V.,15 the servicemen simply made offers of sexual relations to the girls, used foul language, took them by the hand, and stroked their bodies. They have flatly denied using violence in order to have their desires satisfied. Notably, members of the federal law enforcement agencies could very well hope to go unpunished, given not only the inaction on the part of prosecutors, but also the leniency of the courts. According to the Prosecutor General’s Office,16 over the years of the “second Chechen war” there have been merely two cases of Russian servicemen being prosecuted and convicted on the count of sexual assault and rape, with a probationary sentence passed each time. To emphasize, in the second case, the victim was not an ethnic Chechen female. Here we are talking about impunity, the victim’s ethnic affiliation making little difference. Of course, the relatives of the victims of the ongoing armed conflict have been suffering particularly badly, especially the ones that “disappeared” following their detainment by the law enforcers. For example, Zh. 12 For more detail see “Impunity of Criminals Asks for International Tribunal to be Established.” (www.memo.ru, March 6, 2003). 13 Relevant criminal case was merely initiated three months later when “Memorial” experts had the mother of one of those who “disappeared” accompanied to be received at the local prosecutor’s office. 14 Response from the Chechen Republic prosecutor’s office; out reference #15/40-1538-02 of July 17, 2002 to the “Memorial” Human Rights Center request; in reference #58/02 of February 2, 2002. 15 Local residents whose names have been omitted for good reasons. 16 Response, out reference #52-3804-03 of April 25, 2003 signed by S. Fridinsky, Deputy Prosecutor General of the Russian Federation, to a request (reference #23289-KS of January 17, 2003) dispatched in the name of S. Kovalev, State Duma deputy. The response was placed on the “Memorial” website (www.memo.ru). 234 Agouyeva (look above),17 mother of a detained person, desperately sought to approach any and all officials to secure some knowledge of the whereabouts of her son. Though uneducated in legal ways, she walked the path already covered by thousands of Chechens before her. In the first place, she tried to “settle the question” through the available brokers that thrive on commission from the ransom money used in arrangements to release people being held hostage. Then she duly turned to the local KourChaloy and Shali districts police headquarters, the Shali district FSB office, the Chechen prosecutor’s office, and even to the local traffic police office. Each time she would be indifferently turned away and dispatched to yet another authority. It was only in February 2003 that “Memorial” experts eventually met with Zh. Agouyeva. On February 17, 2003 she wrote an application to V. Kravchenko, Chechnya’s head prosecutor, and went right over to the prosecutor’s office while being accompanied by a “Memorial” expert. It was only then that her application was finally filed, which actually came to pass exclusively as a result of the insistence on the part of the aforementioned expert from the Human Rights Center “Memorial.” Regrettably, in view of the fact that the staff from the Chechen prosecutor’s office assumed a rather irresponsible attitude, the precious time needed to find and rescue the man, just as is needed to search out other kidnapped people and punish the culprits, was lost. Obviously, in the conditions of the continued armed conflict numerous hazards for women, just as for all other social groups that do not bear arms, emanate from either warring side. Women perish in terrorist acts mounted in busy, populated places. Now and again, women are targeted for a purpose. By way of example, November 27, 2000, saw the killing of L. Netsvetova, personnel inspector from the Grozny State University. Allegedly, it was a revenge killing: Netsvetova was said to be in the way of some members of the Russian special services seeking to remove personnel archives from the University. This kind of killing is rather difficult to single out from its generally appalling criminal background. For example, on June 28, 2002, four women were killed in Chechnya. In the local Grozny-based marketplace an unidentified armed man shot the 23-year-old M. Makhmayeva to death. In the Zavodskoy district, Grozny, the dead body of a young woman was uncovered, with numerous signs of a violent death being only too evident. At Naourskaya, some unidentified armed men shot two women to death — the 23-year-old A. Batasheva and the 30-year-old T. Khadzhiyeva. The two women apparently fell victim on account of their being too vulnerable. Admittedly, non-Chechens have likewise been confronting the same risks. Separately, a word should be said of the women whose behavior patterns come to be at odds with those established in the local Chechen community. Several women are known to have been killed because they had started their own catering businesses frequented by Russian servicemen and where one could buy strong drinks.18 In the conditions of total de-modernization and prevailing trends of “neo-archaic revival,” on the one hand, and religious extremism, on the other, all those killings could be safely passed as the ultimate form of intolerance. 17 For more detail see “Impunity of Criminals Asks for International Tribunal to be Established.” (www.memo.ru, March 6, 2003). 18 These women likewise are reported to have been unconstrained in their ways. 235 According to the data held by the “Chronicles of Violence” released by the “Memorial” Human Rights Center, in 2002 women killed in the Chechen Republic accounted for 10% of all civilians killed in that territory.19 The “Chronicles of Violence” (a by-far incomplete account) reports 60 women killed in one year of the ongoing armed conflict, the gruesome total apparently being more than twice as large.20 This number comes to be dramatically higher than the averaged comparable nationwide indicator, especially given that Chechnya’s population currently stands at about 600 000 people.21 Meantime, one should not deny the fact that local Chechen women have been increasingly involved in the conflict. Some of their names have become highly visible because of their participation in terrorist acts. One of the first of such cases involved a female homicide-bomber that killed the Urus-Martan district military commandant, Gadzhiyev, in November 2001. What is more, as many as 18 of the 32 terrorists that seized the Dubrovka theater in Moscow on October 23, 2002, took the audience hostage, and that were eventually killed during the rescue operation on October 26, 2002, were women. * * * Understandably, human rights violations in Chechnya have been linked not only with the ongoing military operations there, but also — indirectly — with the overall social and economic hardships. Over the past decade the local social and economic infrastructure has nearly been totally disrupted, which cannot but tell of the status of women in the republic. Most of the men have no jobs, and they have been devoid of the right to move about freely and take steps to get themselves either socially, economically, or otherwise involved in some useful and profitable pursuits. As a consequence, women have to bear prohibitive moral and physical burdens. A local woman with a family normally has to take care of her loved ones unassisted. Then, it is generally women that perform all hard-labor and low-paying jobs. No other sources of legal income are currently available in Chechnya. Even such unenviable jobs are not enough in the ruined republic, and families survive on humanitarian aid handouts, benefits, or pensions. Government social security services gather no information on the particularly needy and disadvantaged families. Oftentimes, while being unable to surmount the bureaucratic hurdle, Chechens find themselves without any social security and way below the poverty line. Contrary to the local 19 The year’s death toll for the republic stands at 720, the number breaks down as follows: Ichkeria’s militants — 52; Chechen militiamen — 109, civilian residents — 559 (males — 436 and females — 60, with those younger than 18 years of age — 31). Apparently, the numbers fail to jibe, because the age of 32 of the dead bodies could not be verified. One can be quite certain that 372 people (two thirds of all lethal cases) had been killed by members of the federal coercive structures deployed in Chechnya. 20 This appears to be analogous to a situation when under the Ministry of Internal Affairs statistics released in the spring of 2003 the year 2002 saw 1 132 civilians (men and women) killed, which evidently comes to be at odds with 559 lethal cases amongst non-combatants, according to the “Memorial” statistics carried by the “Chronicles of Violence.” 21 For more details about the October 2002 census results (1 088 thousand residents in the Chechen Republic) see “Results of Chechen Census: Demographic Miracle — Political Mirage or Financial Fraud?” available on the “Memorial” website. To know more about the Chechen demographics over the past decade see A. Cherkasov “Book of Numbers: Demographics, Population Drops and Migrant Flows in Armed Conflict Zone in Chechen Republic;” “Chechnya Three Years Later: the Dead and the Living” available on the “Memorial” website (www.memo.ru). 236 Wainakh and Muslim traditions, Chechen women, that have physical injuries or psychological disabilities from military operations, or have lost their husbands and have to raise their families without a provider, often find themselves left to their own devices. The educational system has nearly been wiped out. Teenage girls are unable to receive a full-fledged higher education, with the assorted talents of young women thereby remaining untapped and unrealized. In closing, it should be pointed out that proper knowledge about the plight of women in the zone of the armed conflict in Chechnya is yet to be built up, generalized, categorized, and processed, which appears to be rather a pressing and challenging task.22 22 In 2003 such a project is run by the “Zhenskoye Dostoinstvo” public charity organization. LIST OF MONITORING PARTICIPANTS City Barnaul Irkutsk Izhevsk Kaliningrad Krasnodar Kurgan Moscow Murmansk Naberezhnye Chelny Nizhni Tagil Novocherkassk Novosibirsk Penza Petrozavodsk Pskov Saratov Syktyvkar Smolensk Stavropol Tula Voronezh 238 Organization Altay Territory Women’s Public Organization “Nadezhda (Hope)” Regional Public Organization, Baikal Regional Women’s Union “Angara” Noncommercial Partner Organization, League of Working Women “Harmony” ROO League of Voters of the Kaliningrad region Krasnodar Territory Public Organization “Protection of Taxpayers’ Rights Society” Women’s Public Organization of the Kurgan Region “School of Female Leadership” “Center for the Study of Modern Politics” Fund Kolsk Association of Women Lawyers Women’s Public Organization “Femina” Public Union “Lana” helping survivors of sexual and domestic violence Regional Public Organization, “Women of Don” Union City Public Organization for the Protection of Women’s and Children’s Rights “Assol” Penza Regional Public Movement “Female Initiative” Karelia Regional Public Organization “Maiya” Public Union “Independent Social Center for Women of the Pskov Region” Saratov Region Public Organization, “Initiative” Women’s League Republican Public-Political Women’s Union “Women’s Chamber” Smolensk Region Public Organization “Center of Social Support for Women” Stavropol Regional Public Organization, Gender Human Rights Protection Mission “Parity” Public Organization, Tula Regional Support Center for Women and Children “Friend” Interregional Human Rights Protection Group Coordinator Galina Goncharenko Svetlana Uralova Ludmila Chebrova Irina Gertsik Ludmilla Maksimenko Marina Postovalova Valentina Sherstobitova Irina Paikacheva Elena Mashkova Nina Vinogradova Ludmila Shepelenko Irina Muravieva Marina Apanasenko Elena Merzova Natalia Vasilieva Tatyana Kataeva Marina Vavilina Svetlana Egorova Yulia Lyalikova Tamara Lopatina Anna Shvedova THEMATIC ESSAYS THE STATUS OF CHILDREN N. Kravchuk Statistics In early 2002, the number of children under the age of 18 in the Russian Federation was 31.6 million. Over the period from 1999 to 2001, the number of children in the country decreased by 2.3 million. The percentage of children the overall population dropped from 23.3% at the beginning of 2000 to 22% at the beginning of 2001.1 The 2002 State Report on the Status of Children in the Russian Federation indicates that the demographic trends that are currently in place in Russia have a significant, negative effect on children: the infant mortality rate is high, the birth rate is low, and the divorce rate is growing, as is the number of children born outside of marriage. The number of children deprived of parental support keeps growing. For example, in 1999, 113.9 thousand such children were identified; in 2000 — 123.2 thousand; and in 2001 — 128.1 thousand (4% more than in the preceding year). The total number of orphans and children living without parental support amounted to 685.1 thousand individuals in 2001.2 56.4 thousand children were taken away from parents judged to be unfit in 2001. This is 6.2% more than in 2000 and 21.1% more than in 1999.3 Current Mechanism for Protection of Children’s Rights Although the legal status of minors in Russia and the agencies authorized by the state to protect them has become even more tightly regulated over the past several years, children have not seen any improvement in their ability to exercise their rights. The fundamental right of the child provided for by both international4 and domestic (RF Constitution, Article 45) laws is the right to be protected. This right, as well as all the other rights provided for by the RF Constitution, is inalienable and is granted to everyone from the moment of birth (Article 17, RF Constitution). The state must not only maintain a system of protection of rights and freedoms, by establishing both organizational bodies and effective, concrete procedures to ensure that responsibilities to children are met.5 1 2 3 4 5 State Report “On the Status of Children in the Russian Federation” (Ìoscow, 2002 pp 4—5). State Report “On the Status of Children in the Russian Federation” (Ìoscow, 2002. p. 42). Ibid. Article 3 of the UN Convention on the Rights of the Child. Constitution of the Russian Federation. Comments (Ìoscow: “Yurist,” 1997, p. 100). 241 In addition to the Constitution, the right of the minor to protection is also accounted for by Article 56 of the RF Family Code (it is worth mentioning that the old RSFSR Family and Marriage Code did not account for such a right). Beside the general provision of the child’s right to protection of his or her interests, the article also protects children from abuse by his or her parents (or guardians) and legal means to ensure these rights. Moreover, the same article obligates officials, organizations and citizens who are aware of any factors threatening the life or health of the child or of any violations of the child’s rights and legal interests to report such threats and violations to child support authorities. Having received this information, child support authorities must undertake necessary measures to protect the child. Although the RF Family Code guarantees the right of the child to independently seek assistance in courts of law upon reaching the age of 14, the legislation does not provide for a mechanism that enables the child to apply to administrative and judicial authorities. The lack of such a mechanism prevents the minor from exercising and protecting his or her rights in circumstances when the child has no legal representatives or is in conflict with them. At one point there was hope that the new RF Civil Procedure Code6 would address this issue adequately; unfortunately, it did not fulfill its promise. The order in which the rights of minors are legally protected in Russia has a number of peculiarities. To begin with, for understandable reasons, children are more or less unable to independently protect their own rights and interests and are therefore rely on special, state-provided protection. Additionally, for a long time, children had been perceived exclusively as objects, not subjects of rights. This affected both the legislative base determining the legal status of children and the mentality of lay citizens and officials. For example, despite the fact that Article 57 of the RF Family Code dictates that the opinion of children over ten years of age be taken into account in all cases in which it might be helpful, in practice, child support agencies and courts do not always take children’s opinions into account. They justify their decision to ignore children’s testimony by claiming that children are easily influenced, since they regard children exclusively as objects of rights and duties of parents. By and large, they see this as a deeply ingrained part of public opinion and social consciousness, and insist that Russian society is unprepared to recognize the child as a subject of rights. The main obstruction to the protection of rights of minors in the court of law is the fact that although Article 37 of the new RF Civil Procedure Code obligates the courts to allow children aged 15—18 participate in legal proceedings, as a rule, the interests of the child are represented in the court of law by his or her legal representatives (parents, adoptive parents, guardians, and trustees). The same article also requires a law that would specify the circumstances under which an underage individual aged 14—18 could have the right to personally protect his or her rights and interests in court in cases that originate from familial and other legal relationships. Under such a law, courts have the right to decide whether or not participation of parents, adoptive parents, guardians, or trustees in such cases is desirable. Thus far, however, such legislation has not been adopted. 6 Enacted on February 1, 2003. 242 Although Article 56 of the RF Family Code provides for the right of the child to independently seek protection of his or her rights in the court of law upon reaching the age of 14, no real mechanisms for the implementation of this right have been put in place thus far because the current civil procedure legislation does not legal status to minors who aim to protect their rights against their legal guardians, or who have no legal guardians at all. It is expected that the legal reform that is currently underway will result in the introduction of the juvenile justice institute. On February 15, 2002, the RF State Duma passed a law in first reading that introduces juvenile courts in Russia, i. e., courts for juveniles. Should the introduction of juvenile courts be successful, the terms of pretrial detention of underaged suspects, who today spend as many months and years in pretrial detention facilities expecting their trials as adult prisoners, can be reduced.7 As far as the protection of children’s rights in the administrative order is concerned, there is a whole system of state bodies in Russia which are obligated to protect the rights of minors. According to Paragraph 1 of Article 8 of the RF Family Code, children’s rights are protected by child support authorities operating at the local self-government level. At the same time, child support authorities virtually represent the state in their activities. In addition to protecting the rights of children who are in custody of their parents, these authorities act as the sole protectors of the rights of children who have no legal guardians; they act on behalf of the state in cases in which children’s rights have been violated and the child’s legal representative is either absent or does not fulfill his or her obligations. Article 121 of the RF Family Code obligates child support agencies to protect the most vulnerable children in particular: children who have no parental guardians. They are responsible for identifying such children, keeping records on them, and, depending on the specific circumstances in which these children lost their parents, to facilitate their adoption or placement in a foster home. In addition, these agencies must monitor the conditions in which the adopted and institutionalized children live and are educated and raised. The Family Code specifically forbids identification and placement of children who have no parents except by these child support agencies. In establishing this norm, the legislature apparently was concerned about vesting the authority of registration and placement of children without parents in one specific arm of government. However, it was a mistake to apply this prohibition to activities associated with identification of parentless children. Even if such activities must remain the duty of child support authorities, other agencies must also be able to work on these issues, as such work can only have a positive effect on the effort. In addition to child support bodies and their multifaceted activities, other groups that must play a role in protecting the rights of children are: commissions on the affairs of minors and protection of their rights, lawenforcement agencies, prosecutors, the RF Ombudsman, and the Ombudsmen for children’s rights in the varios Russian regions. So far the Ombudsman on children’s rights has been introduced in 11 regions8. The Ombudsman for children’s rights is responsible for ensuring that the rights, freedoms, and legal interests of the child are protected by the state. It is assumed that the Ombudsmen will focus most of their attention on the 7 8 “Juvenile Courts to Appear in Russia.” Prima Information Agency (February 15, 2002). “The Problems of Street Children in Russia.” Khartia.Ru (January 29, 2002). 243 protection of interests of orphans, children who have been deprived of parental guardianship, as well as children and adolescents who have found themselves in difficult situations.9 Currently, the RF State Duma is considering the adoption of Federal Law “On the Ombudsman for the Rights of the Child in the Russian Federation.” However, given that the State Duma has so far failed to develop and approve minimal living standards for children that the Ombudsman must ensure and the fact that authority of the Ombudsman is limited to making recommendations only, the introduction of this legislation cannot seriously affect the defense of children’s rights. The Ombudsman for human rights of the Moscow region, S. Kryzhov, shares this opinion. He has said that in order to protect children’s rights effectively, the Ombudsman for children’s rights must be vested with real executive authority that would allow them to not only give recommendations but also to issue binding orders for executive agencies, in particular, those that address social security, education, health care, and lawenforcement agencies.10 Changes in the RF Legislation Affecting the Legal Status of Children In 2002, in addition to federal legislation that was adopted in Russia under the current legal reform program (especially the RF Labor Code, the RF Administrative Code, the RF Criminal Procedure Code, the RF Civil Procedure Code, and Federal Law “On the Staying of Foreign Citizens and Stateless Persons on the Territory of the Russian Federation”), there were numerous relevant bylaws and internal directives adopted, the analysis of which indicates that no real and systematic steps have been taken by the state in its attempt to take care of minors. Some of the laws adopted in 2002 appear to attempt to compensate for the shortfalls of the state budget, others have a declarative nature, and the rest undertake to regulate issues that are insignificant in the present situation. These include for example, such documents as Order of the RF President #291-rp of June 17, 2002, to pay 78.2 million rubles from the Presidential Reserve Fund to special institutions for minors who require social rehabilitation, the decision of the Board of the RF Health Ministry of September 6, 2002, to improve the protection of health of adolescent children, and finally the letter of the RF Ministry of Education #01-50-841/32-05 of June 27, 2002, providing brief information about the role and place of cadet schools and cadet boarding schools in the contemporary education system as well as recommendations on how to start up such schools. Federal Law #63 adopted on May 31, 2002, “On the Bar and Work of Advocates in the Russian Federation,” that accounts for the free provision of legal assistance to only one narrow category of children — those in institutions of the juvenile delinquency prevention system — is another example of how children’s rights continue to be ignored in newly adopted legislation. Children do not have opportunities to receive legal assistance free of charge. Thus, instead of undertaking measures to correct the present situation in which basic rights of children are violated, including the right to 9 O. Fedorchenko, “Street Children Have an Accomplice Now.” Khartia.Ru, February 6, 2002. A.Levandiy, “Children Are More Difficult to Protect than Adults.” Yezhednevniye Novosti. Podmoskoviye (June 29, 2002). 10 244 have a family, the right to education, and the right to be protected, the state passes many laws that do not affect the situation at all. Violations of Children’s Rights Among the rights of children that have been most frequently violated over the past several years are the right to education, the right to be raised in a family, and the right to be protected from domestic violence. All these issues are closely connected with the right of the child for protection that is also consistently violated. In spite of the fact that there is a system of bodies specifically designed to protect the rights of minors, it is these very bodies that are more and more often reported as violators children’s rights. In some cases, officials deliberately do not fulfill their duties, while in other cases they unintentionally fail. The following case can serve as an example of violation of child’s rights by state authorities: M. Grigoriyev was expelled from school #175 in Moscow. During the seven years that he did not attend school not a single representative of the local social security authority paid attention to the fact that the right of this child to education was being violated. The physician in the local hospital who discovered that her patient could not read, write, and count did not report this to the local child support authories. Grigoriyev’s sister was expelled from grade six (school #128 offering advanced training in foreign languages) and her right to education was also violated.11 Although the necessity of penalizing the school administration and the hospital’s pediatrician is questionable, their non-action in essence constitutes a violation of children’s rights and, in particular, violates provisions of Article 56 of the RF Family Code, which states that anyone who discovers a violation of children’s rights must report it to the child support agency with jurisdiction in the particular child’s place of residence. Unfortunately, the law does not provide for a liability for non-reporting of such information, and, as a result, officials ignore it. According to the Russian Education Academy, 60% of Russian children (more than ten million individuals across Russia) who finish elementary school can barely read. Prosecutor-initiated investigations that were conducted in various Russian regions in the mid-90s revealed that schools had invented a great number of sophisticated and seemingly legal techniques to get rid of children who are lagging behind in their studies. Upon completion of a few years of schooling, these Russian citizens have almost no chances to continue their education.12 The 2002 State Report “On the Status of Children in the Russian Federation” points to the fact that the right of children to education is violated as early as in pre-school. Violations at this stage are primarily associated with psychological testing of kindergarten graduates. When screening children for admission to first grade, schools require potential pupils to possess outstanding abilities in one field or another; they admit first-graders on the basis of test results, a violation of the order of open admission to first 11 N. Bershadskaya, “Little Boy Cries: “I Will Not Go Back Home!” Parlamentskaya Gazeta (January 22, 2002). 12 S. Kirillova, “An Illiterate Man from Tverskaya Street.” Moskovskiye Novosti (January 22, 2002). 245 grades of general education schools. Schools tend to get rid of the so called “difficult” children and adolescents by screening them out. Surveys among children who left school in grades five—nine indicate that approximately 40% of them associate their departure from school with conflicts with teachers, and an equal percentage amount of children were of the opinion that they had been ousted from school.13 It is not uncommon for children who have completed grade nine (incomplete secondary education) to be unjustifiably denied the right to continue their education in grades ten—eleven. On no legal grounds whatsoever, general schools organize tenth grade around advanced study programs in one or a group of subjects, thus depriving students the opportunity to continue their traditional, general program of education.14. Some of Russia’s most vulnerable children are those with no legal guardians, who are instead in the custody of the state.15 These children are not protected because they have no opportunity to address mistreatment. Here are several examples of abuse of children who are in custody of the state. The Principal of Saratov boarding school #3, G. Shumilina, forbade feeding students who misbehaved (for example, those who missed classes). The Principal would personally conclude whether or not her order was carried out. The case was taken to court but the court did not deem it possible to apply provisions of the RF Criminal Code to the Principal’s actions. In the same boarding school a student who had missed a class was flogged and forced to spend a night outside.16 There was a cell in the boarding school in the town of Pagzha (Komi Republic). The cell was two meters by one meter in size with a concrete floor and it used to be a toilet. Instead of a door there was an iron grid. At night, a mattress and a thin blanket would be squeezed through its bars. When the school was to be inspected by a commission of the Ministry of Education the Komi Republic, the iron grid was removed and the cell was supplied with electric lights. The commission, however, considered the complaints of that some of the boarding school instructors had submitted to the Ministry part of an internal conflict, while it did point out some insignificant violations of the pedagogical process. Several students of this school undertook suicide attempts. Student G. Ustinova tried to hang herself. The girl was taken out of the loop before it was too late, but she was severely and permanently injured. One year prior to that, L. Bezmaternykh jumped out of the window. Soon after that, another girl decided to follow suit — her friends were able to just grab her hands. One week later, though, she cut her veins open. A total of approximately ten students attempted to commit suicide. One of them, V. Khuseinov, having spent some time in the aforementioned cell, attempted to throw himself under a moving car. He later said he wanted to die in the hope that the administration of the boarding school would be punished for his death. 13 State Report “On the Status of Children in the Russian Federation” (Ìoscow: 2002 p. 22). Ibid. 15 Paragraph 1 of Article 20 of the UN Convention on the Rights of the Child provides that a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the state. 16 A. Subbotin, “Upbringing by Hunger.” Trud (July 18, 2000). 14 246 When several instructors of the boarding school had finally managed to initiate criminal proceedings against the Principal, they began to experience pressure from the administration to withdraw their testimony. The specific forms of pressure included reprimands, salary cuts, and threats over the telephone. Almost right after a video was publicized which showed one of the students demonstrating how he had been forced into the cell, he and some other children who had also been locked in the cell at some point were coerced to begin treatment with psychotropic substances. One of the children to whom the drugs were administered developed cramps and severe delirium.17 These cases indicate that cruelty of foster institutions’ staff is one of the primary reasons for the increasing number of school dropouts. Today, mass media openly discuss the importance of protecting children from not only traditionally feared criminal and socially dangerous elements of society, but also from parents and individuals acting in parental capacities.18 Parents physically and psychologically abuse their children and make them work. Brothers Damir (ten years old) and Ravil (nine years old) had to leave school because their mother forced them to work and earn money to buy food for her and her other seven children. Despite the fact that the boys worked as car washers and gave all the money they earned to their mother, she beat them. As a result, to escape hunger and beatings the boys ran away from home.19 Four-year old K. Kozlova died at the hands of her own mother in 2002. Law-enforcement officers found the tied up corpse of the girl in a cesspit in which her mother dipped her until she died.20 The official data on sexual abuse of children in Russia does not reflect the magnitude of the problem. According to official reports, over a thousand children a year suffer from sexual abuse. In reality, it is much more common. The “OZON” organization alone, which serves the Central administrative district of Moscow, receives complaints from 100—150 sexually abused children annually. The number of these complaints grows every year.21 In addition to physical and psychological abuse of children, another important problem has emerged that has to do with violation of property rights of children by parents and officials. The most frequent violation in this sphere is the sale and exchange of residential property by parents who disregard the interests of their children, as well as some officials’ illegal confiscation of the property of children in the custody of the state. The story of Svetlana and Maxim Domozhirov is a typical one. Their family used to live in a two-room apartment in one of the settlements in the Krasnodar territory. When their parents died, the children were sent to a 17 V. Ovchinnikov, “I Wanted to Die like that Boy...” Tribuna (April 9, 2002). Article 18 of the UN Convention on the Rights of the Child provides that parents or legal guardians have the primary responsibility for the upbringing and development of the child. 19 E. Reshetnik, “Flowers of Life in the Ice-Cold Wind.” Tribuna (February 14, 2002). 20 A book to commemorate the children who have fallen victims of domestic violence is being made ready for publication in Novgorod. 21 I. Sergeyev, “Heirs of Dzerzhinsky.” Moskovsky Komsomolets (September 20, 2002). 18 247 foster home. Local authorities re-possessed the apartment for temporary use having issued an official promise in writing that the apartment would be returned to the children when they are grown up. When the children claimed their right to the apartment, it was already privatized and sold to somebody else.22 The 2001 State Report “On the Status of Children in the Russian Federation” provides the following statistics on registered crimes committed by adults against underage children:23 1999 2000 2001 Newborn children murdered by their mothers 251 231 203 Sexual intercourse or other actions of sexual nature with an individual under 14 years of age 194 160 146 Molestation 884 697 583 Evasion of payment of alimony or evasion of financial support to parents unfit to work 40 295 41 512 44 111 Involvement of an underaged individual in committing a crime 23 974 20 529 16 570 853 482 418 Sale of underage individuals 28 37 16 Illegal disclosure of adoption information 38 28 26 2 116 2 557 2 973 38 26 46 Organization or keeping of prostitution facilities 118 126 165 Illegal distribution of pornographic materials and paraphernalia 295 361 442 Involvement of an underaged individual in committing antisocietal actions Failure to fulfill duties associated with the upbringing of an underaged individual Involvement in prostitution At the same time, the RF Prosecutor General reported that 96 700 underage individuals were victims of criminal activity in 2001. Almost 4 000 adolescents died at the hands of criminals, and 4 600 were severely injured.24 Thus, the statistics presented by the prosecutors’ offices differ from the official statistics provided in the State Report. Domestic violence is one of the primary reasons why children run away from their homes. According to T. Lysenko, Chairperson of the Committee on Women, Family, and Demograpic issues of the Tula regional administration, out of the 200 region’s street children 94% claimed they had run away from home due to their parents’ cruelty; 77% of them said it was their mothers who were abusive.25 According to statistics provided by mass media, domestic violence exists in every fourth Russian family. Approximately two million children under the 22 I. Kiryanova. “Kuzmich Comes Down to Hell.” Literaturnaya Gazeta (March 27, 2002). State Report “On the Status of Children in the Russian Federation.” (Ìoscow: 2002 p. 117). 24 “The Status of Street Children in Russia.” RFE/RL (February 21, 2002). 25 “Implementation of a Program of Assistance to Children Who Have Suffered from Domestic Violence Has Begun in Tula.” Khartiya.Ru (January 14, 2002). 23 248 age of 14 suffer beatings from their parents. Each year, 50 thousand children leave their homes to escape cruel treatment. And only 25 thousand of them are sought out by their parents.26 These figures indicate that children who leave their homes and become runaways are not sought out by their parents, who are probably glad that the burden disappeared by itself. The problem of homeless children27 is one of the most pressing problems in Russia. More than 13 thousand children wander the streets of Moscow alone, with nowhere to go.28 It should be noted that the exact number of homeless children in the Russian Federation is not known. The figures provided by state officials vary. For example, V. Ozerov, Chairman of the Federation Council Committee on Defense and Security, reports that according to various estimates, there are three to five million homeless children today in Russia.29 The Minister of Education claims that “there are 100—500 thousand street homeless today in Russia.”30 Independent experts say as many as four million.31 Officials claim that control and registration are the primary methods that should be employed to stop children from leaving home. For example, the Ministry of Education experts suggest that the system of registration of children who go to schools and boarding schools be reinstated and the “problem of street children be solved with the participation of the Ministry of Internal Affairs, the Ministry of Labor, and migration authorities.” The Minister of Labor, A. Pochinok, has promised “to undertake effective measures to combat the phenomenon of street children — for that purpose there will be developed a draft federal program, “Children of Russia,” for 2003—2006.” (It should be noted that a whole group of federal programs “Children of Russia” was in place in 2001—2002, which did not prevent the number of street children from growing.) Despite the abundance of social programs the efforts undertaken by Russian authorities to combat the problems causing children go wandering are poorly coordinated. Apparently, without radical changes in the sphere of control over neglected children the situation in Russian cities will not improve.32 Moreover, it continues to deteriorate at a disastrous pace. According to V. Matviyenko, former Vice Prime Minister of the RF Government on social issues, 100 thousand new orphans appear in Russia each year.33 In early 2002 the RF President pointed out the problem of street children and emphasized the necessity to address it. In response to the presidential remark, the RF Government undertook a number of measures in that direction. At the beginning of 2002, Prime Minister M. Kasyanov signed a decree on additional measures to improve the effectiveness of preventive 26 “A Panel Discussion of the Domestic Violence Problem Took Place in Novgorod on March 22.” ASI (March 23, 2002). 27 Transient or street children include individuals deprived of housing and parental care, as well as individuals who have homes but are deprived of parental care. 28 “Moscow Unable to Help Underaged Vagabonds.” Khartiya.Ru (January 9, 2002). 29 M. Sergeyev, “Combating the Phenomenon of Transient Children.” Strana.Ru (January 14, 2002). 30 Ibid. 31 O. Nesterova, “The Bitterest of Grieves.” Trud (January 16, 2002). 32 M. Sergeyev, “Combating the Phenomenon of Stray Children.” Strana.Ru (January 14, 2002). 33 Ibid. 249 efforts targeted at combating the phenomenon of underage individuals on the street. The decree does not promise additional funding (the funding of such activities was accounted for by one of the parts of the “Children of Russia” program and remained at the initially planned level — approximately 80 million rubles a year) but is focused on mobilizing the already existing resources. Now it is not only the Ministry of Labor but also the Ministry of Internal Affairs, the Ministry of Education, and the Health Care Ministry that are obligated to combat the phenomenon of street children. Additionally, a special Interdepartmental Operative Headquarters led by Minister of Internal Affairs, B. Gryzlov, was established to coordinate the activities of federal executive bodies targeting homeless children and juvenile delinquency. Other ministries are represented by Y. Shevchenko, Minister of Health Care, V. Filippov, Minister of Education, G. Karelova34, first Deputy Minister of Labor and Social Policy, and A. Rakhayev, Deputy Minister of Culture. Given that the campaign against homeless children is headed by the head of the Ministry of Internal Affairs, it is apparent that authorities are going back to Soviet methods of controlling street children: the Ministry of Internal Affairs, which was virtually removed from participation in the fate of runaway children in 1999, is again responsible now for searching them, picking them up, determining their identity, and sending them off to medical institutions.35 At present, the practice of combating the phenomenon of homeless children remains ineffective. For example, the police of the city of Irkutsk is to regularly conduct operations catching street children and letting them go right away because there are no shelter facilities to keep them in and the children do not want to go back to their oftentimes problematic families or foster homes.36 Surveys among children living on the street indicate that only 13.5% of them are orphans. (According to another source, 90% of street children are “social orphans.”37) The primary reasons why children run away from their homes include constant conflicts within the family, mutual estrangement, and violence exercised by parents. Approximately one third of the surveyed children confessed that their parents had never paid any attention to them; 10% of the underaged homeless children have one of the parents in prison; parents of 32% of them are deprived of parental rights. Approximately one third of the children said that either their mothers or fathers had drinking bouts, while another third reported that their parents drank almost every day. Note that only 4% of the surveyed street children had never attended school.38 It should also be noted here that another problem is closely connected with and partially stems from the problem of homeless children — violation of 34 On April 24, 2003 G. Karelova was appointed Vice Prime Minister of the RF Government on social issues. I. Belasheva, “Police to Help Street Children.” Vremya Novostey (March 19, 2002). 36 M. Noskovich, “Street Children Washed Clean Specifically for New Year’s Holidays.” Izvestiya (January 14, 2002). 37 A. Kornya, “Difficult Road to Home.” Vremya MN (January 16, 2002). 38 M. Sergeyev, “Combating the Phenomenon of Stray Children.” Strana.Ru (January 14, 2002). 35 250 the right of children to education.39 The RF Minister of Education, V. Filippov, claims that 1.5—2 million children of school age in Russia do not go to school due to a variety of reasons. However, Vice Prime Minister V. Matviyenko (referring to data provided by the Ministry of Education) argues that only 368 thousand children do not go to school; the number of children on the street does not exceed one million, according to the Ministry of Labor. It is difficult to imagine that the other 600 thousand street children still go to school still. The difference in the figures provided above indicates that the true scale of the problem is not known even to people who are responsible for solving it.40 Mass media speak about violations of the right of children to education exclusively within the context of the problem of street children. Naturally, it is impossible to assume that children living in railway stations and earning their bread by stealing and begging would continue going to school and doing their homework. It is worth mentioning, however, that even children from normal families avoid going to school. Thus, at present the situation with the observation of the rights of children in Russia remains complicated. State authorities are not only incapable of effectively protecting children’s rights, they often violate these rights themselves. The gradually developing norms regulating the protection of children’s rights thus far has not affected the situation in any significant manner. 39 The right of the child to education is provided for by Article 28 of the UN Convention on the Rights of the Child. 40 M. Sergeyev, “Combating the Phenomenon of Stray Children.” Strana.Ru (2002. January 14). THE STATUS OF NATIONAL MINORITIES M. Manotskova In 2002, the situation of national minorities was characterized by the exacerbation of a number of serious problems which they had already suffered from before. These include the violation of rights of representatives of certain ethnic groups by authorities (ranging from persecution of Chechens following the terrorist attack in the Dubrovka Theater Center in Moscow, to overtly xenophobic and discriminatory policy instituted by the authorities of the Krasnodar territory), as well as assaults on representatives of national minorities by skinheads and other national-extremists1 (including several anti-Caucasian massacres). At the same time, a number of fundamental problems remain, the major one being the use of the authorization mechanism for the registration of residence to discriminate, first and foremost, against descendants from the Caucasus, Middle Asia, and against the Roma. What aggravates the situation is that in a number of regions authorities refuse to acknowledge representatives of certain ethnic groups (Meskhetian Turks, Kurds, and Armenians) as citizens of the Russian Federation. Some regions have introduced especially strict registration norms that directly contradict federal legislation. There are no state mechanisms (including normative acts) which could help combat discrimination, nor is there any information available about whether or not there is any intention to develop such mechanisms. The Situation in the Krasnodar Territory Throughout 2002 the situation in the Krasnodar territory (Kuban) continued to remain difficult for representatives of ethnic minorities. Odious declarations and actions by Governor A. Tkachov, the unstable position of Meskhetian Turks, and the nationalistic mood of society there render the territory one of the most problematic regions of Russia. The policy administered by local authorities focuses on the systematic exertion of increasing pressure against “alien groups,” especially Meskhetian Turks. In early 2002, the various “usual” difficulties faced in their everyday lives were supplemented with yet another set of hardships — they were denied access to health care, and their children to day care (MayJune, 2002, Krymsky district), courts increasingly denied them the opportunity to file lawsuits, many of them were fined for working or engaging in commercial activities without having registration at the place of residence/stay, which they are also denied, as well as for the “appropriation” of properties that they had purchased ten years earlier. On February 20, 2002, the Territorial Legislative Assembly adopted its Resolution “On Ad1 For more details see section: “Ban on Instigation of War, Discrimination and Violence.” 252 ditional Measures to Offset the Tension in International Relations in Districts of Compact Settlement of Meskhetian Turks temporarily residing in the Krasnodar territory” which virtually forbade the registration of Meskhetian Turks. Regional legislators regard them exclusively as individuals who stopped by on their transit from Uzbekistan to Georgia. The Resolution was abolished only with the enactment of a rather strict Federal Law, “On the Legal Status of Foreign Nationals in the Russian Federation.”2 On March 27, 2002 the Territorial Legislative Assembly adopted the Law “On Stay and Residence in the Krasnodar Territory” that came into force in April. The law contained a number of restrictions that directly contradicted the RF Constitution and federal laws. For example, it increased administrative fines for living in the territory without registration. It is interesting that the authors of the law attempted to speculate, in particular, about the notion of a “borderland” in order to oust Meskhetin Turks and other national minorities from the most attractive western districts of the territory. However, Federal Law “On the State Border of the Russian Federation” does not contain any limitations similar to those that were invented in the Krasnodar territory.3 The territorial law did not directly refer to concrete national minorities, but the crux of the matter was already spelled out by Governor A. Tkachov in his own words in early March: “It is possible to determine whether a migrant is legal or illegal by his or her surname, or rather by its ending, to be exact. Surnames ending with “yan,” “dze,” “shvili,” and “ogly”4 are illegal, as are their bearers, while surnames ending with “ov,” “in,” and “ikh” — are on the contrary.”5 Deputy head of the administration of the RF President, V. Surkov, visited the Krasnodar territory in May 2002. Having met in Krasnodar with representatives from local Armenian, Georgian, Meskhetian Turkish, and Jewish public associations, as well as with Governor Tkachov, Mr. Surkov praised the activities of the territory’s administration, as well as the Legislative Assembly aimed at finding solutions to national issues. The primary subject discussed at these meetings was the problem of illegal migration, and not the problem of the discrimination of national minorities. “Nothing new was communicated to us. Mr. Surkov shook hands with us and declared that our problems were being studied by the President most attentively,” said U. Dzhalaidov, one of the leaders representing the Meskhetian Turks6. In June, the region was visited by a delegation of members from the RF Federation Council headed by A. Kazakov, Chairman of the Committee on Federation Issues and Regional Politics. Having studied the Krasnodar territory’s migration problem, he concluded that it was “time to correct the imbalance and disproportion that had recently developed within the na2 Alternative NGO Report“On Observation of the International Convention on Liquidation of All Forms of Racial Discrimination by the Russian Federation” (“Memorial” Human Rights Center, 2002). 3 A detailed analysis of the relevant legislation was carried out by experts of the Independent Council of Legal Expertise, M. Poliakova and Z. Chechotkina. 4 I. e., surnames of Armenians, Georgians, Meskhetin Turks whose last names have Georgian endings, and Azerbaijani. 5 Quoted from S. Kostenko. “It Is Possible to Identify Illegal Migrants by Their Surnames.” Gazeta (March 19, 2002). 6 “Deputy Head of the Administration of the RF President Meets Representatives of Ethnic Minorities of Kuban.” Kolokol.Ru (May 30, 2002). 253 tional composition and structure of the population residing in Kuban.”7 Thus, he virtually reiterated the ideological formula used by the territorial authorities to justify their discriminatory policy that inter-ethnic tension allegedly evolves as a consequence of alterations in the ethno-demographic balance. The spirit of the resolution adopted by the RF Federation Council on June 10, following its visit to the Krasnodar territory described above, was the same: A noticeable ethno-social misbalance has evolved in the Krasnodar territory that may lead to political consequences and is characterized by a growing quantitative disproportion between the indigenous population of the territory and migrants, which facilitates the development of conditions for international tension among residents of the territory. The resolution confirms the status of Meskhetian Turks as individuals who are in the process of transiting to “Georgia… temporarily residing on the territory of the Russian Federation.” The resolution encourages the State Duma to approve a list of territories in which non-citizens may not reside, and come up with a mechanism for the “temporary removal of certain categories of citizens, foreigners, and stateless persons from districts susceptible to conflict situations,” etc.8 Thus, the policy of “ousting” the non-indigenous population administered by territorial authorities, allegedly in order to reduce “inter-ethnic tension,” was supported at the federal level. In the meantime, it is the policy of regional authorities that accounts for the tension in the Krasnodar territory. Suffice it to say that approximately the same number of Meskhetian Turks resides in the neighboring Rostov region. As opposed to the Krasnodar territory, Meskhetian Turks in the Rostov region were recognized as citizens of the Russian Federation a long time ago; they were granted registration, etc. — and no “inter-ethnic tension” caused by their stay in the territory of the region has been observed. In June 2002, in the settlement of Kiyevskoye of the Krymsky district, several families of Meskhetian Turks who had been living in the Krasnodar territory for over a decade, during which time they had been illegally deprived of the opportunity to work and live normal lives, went on a hunger strike. According to the old version of Federal Law “On the Citizenship of the Russian Federation,” these families had the right to obtain Russian citizenship, were to receive Russian passports and an opportunity to go to school, work, and benefit from social guarantees as provided by the state. However, regional authorities did not recognize their right to Russian citizenship, and denied them some rights and impeded the exercise of others. In 2002 these families were denied the right to rent land. The majority of them do not receive pension and social benefits. Visiting the settlement of Kiyevskoye the delegation of the RF Federation Council refused to meet representatives of the Meskhetian Turk community separately. Instead, the Commission invited them to take part in a common meeting, in which the majority of participants were representatives of the local Cossack community (who are openly hostile towards the Meskhetian Turks). Perhaps this 7 V. Yushkov. “Concerned about Migration.” Parlamentskaya Gazeta (#110—111, 2002). Resolution of the RF Federation Council #337-SF “On the Migration and International Relations Situation in the Krasnodar Territory” of July 10, 2002. 8 254 was the final drop that caused the refugees’ “cup of patience” to run over, forcing them to resort to such a measure as a hunger strike. In December of 2002, leaders of the Meskhetian Turks residing in the Krymsky district of the Krasnodar territory were invited to have a discussion with V. Ostrozhny, chief of the territorial migration authority. The official upon whom the fate of approximately 13 thousand Meskhetian Turks depends suggested that they should fill out migration cards. According to Federal Law “On the Legal Status of Foreign Nationals” that came into force on October 30, 2002, the migration card is designated for foreign citizens and stateless persons entering the country. Mr. Ostrozhny promised that having filled out the cards the Meskhetian Turks would be able to obtain temporary registration for 90 days. However, agreeing to fill out migration cards the Meskhetian Turks thus acknowledge themselves as stateless persons, which can be used as an argument to justify the refusal to grant them the RF citizenship they had been trying in vain to obtain for the past 13 years. As reported by the “Memorial” Human Rights Center, courts in the Krasnodar territory are currently reviewing a great number of lawsuits filed by Meskhetian Turks demanding they be recognized as Russian citizens. As of August 2002, Meskhetian Turks had won 26 lawsuits, in the course of which the courts officially acknowledged that the plaintiffs had resided in Russia since early 1992. This meant that they had had the right to obtain Russian citizenship according to provisions of the previous Law “On the Citizenship of the Russian Federation” (February 1992), in compliance with which any individual who had been permanently residing on the territory of the country by that time could automatically be recognized as an RF citizen. The Meskhetian Turks who won such lawsuits demanded that passport and visa authorities issue new Russian passports to them. When the regional passport and visa authorities refused to acknowledge their citizenship de facto the Meskhetian Turks appealed the refusals. The outcome of the proceedings in these cases is still unclear, but the territorial authorities are seriously afraid of losing the cases. It is possible that the actions of the chief of the territorial migration services were based on these fears as well. Nonetheless, the challenging proposal of the migration authority, regardless of whether or not the Meskhetian Turks will accept it, puts them in a complicated position. A refusal to fill out the migration cards will allow authorities to instigate another campaign against this ethnic group in the mass media.9 The status of Chechens The ongoing “counter-terrorist operation” in the Chechen Republic renders Chechens the most vulnerable ethnic group from the standpoint of the violation of human rights. This section will consider the status of Chechens residing in the rest of the territory of the Russian Federation. Indicative characteristics of the present situation are the consequences of the hostage situation that occurred in the Dubrovka Theater Center on October 23, 2002, when the law-enforcement agencies, and authorities in general, virtually applied the principle of collective responsibility.10 9 “Migration Cards for Russian Citizens.” Obschestvo.Ru (December 18, 2002). Such practice had already taken place after explosions of apartment buildings in Moscow in August — September, 1999. For more details see: Human Rights in Russian Regions. (Ìoscow: Moscow Helsinki Group, 2002). 10 255 The moment it became known that a group of Chechen terrorists had taken hostages, the position of the Chechen diaspora in Moscow, including those who lived in the capital without registration and those who had a permanent registration, became dramatically complicated. The police tightened up their control measures, the nature of which humiliated civil and national dignity enough even before the terrorist act. In addition, nationalistic moods within society were noticeably maturing. During the first hours following the hostage crisis, operation “Thunderstorm” was announced, by which all law-enforcement structures were to operate in an enhanced security regime. Despite the numerous declarations by various representatives of authorities on the inadmissibility of persecution of Chechen Muscovites, in practice precinct police officers ran numerous checks and interrogations of Chechens living in their respective precincts. The nature of these checks was clearly discriminative with respect to the Chechens, since their nationality served as the only grounds for interrogations. In the course of the checks a number of various violations and abuses of authority took place. For example, some of the Chechens were brought to police stations and had their fingerprints taken, while others were threatened to be ousted from their apartments in cases where they had no registration. In addition, cases were registered similar to those that occurred after the explosion of apartment buildings in Moscow in 1999, when false criminal proceedings were initiated following the “discovery” of illegal drugs and weapons in Chechens’ apartments that the police would secretly plant there themselves. In addition, complaints were received from Chechen children who were insulted in school and forbidden to continue their education until they were officially registered in Moscow. The Civic Assistance Committee monitored applications submitted by Chechens in which they complained about illegal actions against them. Below are several typical examples.11 The Education Committee of Moscow used the events at the Dubrovka Theater Center to return to the illegal practice of denying children without registration admission to schools. On October 25, Isita came back from school in tears and said she would never go back to that school again. She said that her teacher had addressed the class saying the following, “Children, Isita is Chechen, you must know that.” A representative of the Civic Assistance Committee telephoned the school and asked the principal to sort out this incident, and do everything to enable Isita to attend that school again. The principal denied the possibility of such behavior on the part of the teacher, but promised that everything would be all right. On October 26, a family of Chechens-Muscovites petitioned to the Civic Assistance Committee with a complaint. At 6 p.m. a precinct police officer of the Maryino police department called in and demanded that the husband and wife should follow him. The woman refused to leave the children, and her husband went to the police station having taken his and her passports. One hour later, she received a telephone call and was ordered to show up at the station. They returned home at ten p.m. At the police station they had their fingerprints taken, their photographs taken en face and in profile, and had their height, weight, and special features recorded. They were asked where they were and what they were doing during the 11 For more information, see the website of the Civic Assistance Committee at www.refugee.ru. 256 time the Dubrovka Theater Center events were taking place, and whether they had any witnesses to prove their testimony. To the question on what grounds they were being interrogated the investigator replied, “Why, don’t you watch television? What other grounds do you need?” The investigator kept saying that they had killed 90 people. She asked the same questions several times, the impression was that she was drunk. First, the police wanted to take away their passports, but later the documents were returned to them. All the other police officers, including the chief and the one on duty, conversed politely. The same evening, the Civic Assistance Committee received a telephone call from a Chechen Muscovite. Her 23 year old son had been ordered to show up in the same police department in Maryino. She accompanied him, and although she was not let into the interrogation room she overheard the conversation through the door. The woman-investigator cursed and insulted her son. Other police officers did the same, yelling that they would plant narcotics in his apartment and have him convicted. On October 30, at one o’clock in the morning, without asking permission and without presenting himself or his identification, a precinct police officer of the Golovinsky district police department broke into an apartment in which a family of Chechens lived. The officer acted inappropriately, spoke rudely, and kept saying, “You are bandits, terrorists.” Having ascertained that all members of the family were registered in Moscow and the Moscow region he declared that it meant nothing, and since they were not registered at that particular address he was giving them time until Monday to vacate the apartment, and should they fail to do so he would call a squad and have them evicted. In response to all their attempts to object, he would say that no complaints would be heard out, that he would be the only one to be listened to because he was a police officer. He yelled that he had fought in Afghanistan and went to Chechnya four times to kill men and women for money (his exact words), that he would have the elder son convicted, that he knew how to do that, and that he had already had two Chechens convicted, but they were released, etc. Then, he took the husband to the police station where he repeated all the insults and threats. Lack of housing forced one Chechen family (consisting of nine persons, of whom three were small children and one was a bedridden invalid) to undertake a desperate step. They moved without permission into an empty apartment that had suffered from a fire, had it repaired, and lived in it for a number of years. The building had been removed from the residential fund and was subject to reconstruction that is constantly delayed. Almost all apartments in this building are occupied by such residents, among whom there are two more Chechen families. On October 30, in the evening, they were visited by representatives of the Krasnoselsky district police department and the local department of housing exploitation (including a laborer with a welding device) who demanded they vacate the building. They did not have a prosecutor-authorized sanction for the eviction. To the question on what grounds the eviction was taking place a police officer replied with another question, “Why, don’t you watch television?” The family refused to vacate their apartment, and the eviction was postponed until November 1. Given that it was only the three Chechen families, and not all the illegal tenants in the building, that they planned to evict on October 30, it was clearly an anti-Chechen action. 257 Outrageous violations of human rights and the atmosphere of xenophobia were accompanied by a broad anti-Chechen campaign in the mass media, which was supported not only by marginal extremist publications and “yellow” press, but also by newspapers that claim to be respectable and objective. The Izvestiya newspaper can serve as an example, as it published materials containing hate speech with respect to this particular ethnic group: As applied to the Chechens, the statistics of murders, kidnapping, and terrorist acts do exist and they are dispiriting, which must be treated as a warning sign. The per-capita share of such activities is incomparably higher among Chechens than among any other people of the former USSR,12 Also: Even during the Soviet years, let alone the present time, slavery and slave trade thrived in Chechnya. Secretly from Moscow. But in every village people knew who had slaves, where they were, and when they were taken prisoner or purchased. Therefore, one cannot help raising the issue of group solidarity, of collective responsibility. The complacency of those people who seeing the slave trade industry towards their fellow tribesmen indicates that their national “common sense,” their culture, acknowledges the possibility of slavery, and accepts hostage taking either by deceit or violence. And it does not make sense here to say that this is what only certain bastards do. No, these slave holders act as representative carriers of their national culture.13 The Status of Roma In 2002, the status of Roma in Russia did not change for the better either. On par with the ever increasing frequency of attacks undertaken by skinheads against the Roma, and the law-enforcement agency representatives’ arbitrariness that that have already become routine, are the special operations undertaken by law-enforcement agencies in 2002, the framework of which equates certain types of offences with a particular ethnic group — Roma. In March, and later in July—August 2002, two police operations were conducted that were broadly covered in the mass media. Indicative are the names of these operations (“Tabor” and “Tabor-2”), as they directly refer to the specific term denoting a traditionally big Roma family or clan.14 Police officers were eager to be interviewed by journalists, and they openly talked about the “Tabor” operations, explaining that they were aimed against migrating groups of Roma, that the round-ups would be conducted in railway stations and wherever these individuals would get together, and that each and every one of them will have to have their fingerprints taken. Moreover, police representatives declared that the measures would also be directed against those who provide shelter and support to the Roma. 12 M. Sokolov, “Criminality and Nationality.” Izvestiya (October 31, 2002). A. Kurayev, “How to Fight Terrorism without Special Designation Troops.” Izvestiya (November 13, 2002). 14 S. Kulayeva, “Problems of Roma Refugees. Antifascist Motive.” (#3, 2002). 13 258 In some regions, cases of forced eviction of Roma were registered. 315 Uzbek Roma were deported from Surgut in July, and 42 Tajik Roma were removed from Cherkessk in November.15 Administrative arbitrariness in the policy of Russian authorities is combined with the desire to demonstrate respect for all ethnic groups residing in the country. For example, in October 2002 the Moscow City Duma approved the establishment of a monument dedicated to Roma who died in the Great Patriotic War.16 The court trial of seven skinheads guilty of murdering two Roma, completed on December 11, 2002, is important from the viewpoint of the protection of Roma and other representatives of ethnic minorities from violence based on racial hatred. In August 2001, these individuals attacked a tribe of migrating Roma in Volgograd, and beat two tribesmen to death. Investigation of this case lasted almost a year. As a result, the judge of the Volgograd regional court, F. Salikov, found the defendants guilty of murder (article 105.2 of the RF Criminal Code) and hooliganism (article 213.2 of the RF Criminal Code), and sentenced them to terms ranging from seven to nine years in an enhanced security prison.17 This case is a rare example, as it was also acknowledged that the murder had been committed on the basis of racial hatred.18 However, the majority of cases that have to do with violence based on racial hatred never reach the court. Most frequently such cases are closed at an early stage (refusal to initiate criminal proceedings). And in cases when the attackers were representatives of law-enforcement agencies, the latter sometimes go as far as to directly threaten and blackmail the victims and their attorneys.19 The status of Roma in contemporary Russia is a certain indication of the poor ethnic tolerance level of society and the state. All-Russian Census The subject of the ethnic diversity was dramatically actualized by the Russian census. On the whole, the state regards ethnic diversity as a positive factor. Legislation allows and local authorities encourage, the establishment of nationalcultural autonomies. Nevertheless, often the ethnic self-identification of citizens is out of tune with the goals of certain political power groups. For example, administrations of all national republics in the Russian Federation are interested in the maximum official percentage of the “title” ethnic group in the overall population of the region. Frequently, the issue of ethnic self-identification becomes the subject of conflict between activists of various ethnic groups, and due to various reasons authorities (usually regional, not federal) tend to side with a particular party in these conflicts. 15 “Surgut “Cleaned” from Uzbek Roma.” APN (July 19, 2002); S. Zaitseva, “Tajik Roma Deported from Cherkessk.” Kommersant (#214, 2002). 16 “A Monument to Roma to Appear in Moscow.” NEWSru.com (October 9, 2000). 17 The seventh defendant who did not directly participate in the murder was sentenced to five years in prison for hooliganism and was released on amnesty. 18 D. Kutepov. “Hunting the Roma.” Vremya Novostei (#231, 2002). 19 As reported by the Civic Assistance Committee. 259 Results of the all- Russian census conducted in October 2002 were meant to specify the number of individuals belonging to certain peoples, and to facilitate the improvement of the national policy of Russia. Based on materials developed by the Institute of Ethnology and Anthropology, a list of 800 self-given names of ethnic groups was put together, that was used exclusively for coding census results data. This means that in the course of the census interview a citizen could identify himself with any (even an apparently invented) ethnic group, but the official statistics would only include these 800 names labeling the rest as “others.” The State Statistics Committee considers this number of line-items in the list to be quite sufficient and as adequately responding to the interests of small ethnic groups of Russia.20 Representatives of national minorities, however, do not always share this viewpoint. Many small groups whose names were not included on the list of 800 showed concern that during the data processing they would end up being simply added to larger “neighboring” ethnic groups. At the same time, representatives of certain larger ethnic groups were afraid of the direct opposite. In October 2002, the Union of RF Diasporas held a conference entitled “Russian Census: What National Minorities Expect from It.” The majority of conference participants shared the opinion of R. Spektor, first Vice President of the Union of Diasporas, who said that “many nationalities will be broken into ethnic and confessional elements, and will lose weight as a solid group. Thus, it will be much more difficult to protect their interests in a dialogue with the power.”21 Such a state of things was most noticeable in Tatarstan, where the desire of Kryashens to establish themselves as an independent ethnos caused protests from both the authorities of Tatarstan and the Tatar elite, who insisted on acknowledging only the religious peculiarity of the Kryashens22 as a religious minority, and denied their ethnic uniqueness. The press regularly published reports saying that the attempt of Kryashens (as well as Mishari and Nogaibaks) to identify themselves outside the confines of the Tatar nation was nothing else but a “dissection” of the people caused by pressure from the federal center. According to the press service of the Kryashen National-Cultural Center, the Tatar administration undertook special measures to prevent Kryashens from identifying themselves in the fashion that they considered appropriate for themselves during the census. These measures included, for example, threats to cut off gas and electricity in Kryashen villages, and the utilization of census forms in which the “ethnicity” cell had been filled out in advance. The primary problem is as follows: if the Kryashens do not report themselves as Tatars chances are they will together constitute the majority in the republic with Russians, which in the long run may lead to questioning the status of Tatarstan as a national republic. If, however, the majority of them report themselves as Tatars, it is possible that their number in Tatarstan 20 “Census Participation Certificate to Temporarily Replace Registration Documents for Illegal Migrants.” ASI, October 7, 2002. 21 Ibid. 22 The origin of the Kryashens is actively debated until today. Some Tatar researchers claim that the Kryashens are part of the population of the Tatar Khanate that was baptized by Ivan the Terrible in XVI century. This however is denied by the Kryashens themselves, as well as some ethnologists. In 1926, the Kryashens were forced to give up their status of an independent ethnos which led to annihilation of schools and other educational and cultural institutions of the Kryashens. 260 could turn out to be smaller than 50 thousand people, and the republic’s administration would have to address another issue: the Kryashens would have to be granted the status of a small people, as well as significant legal rights to finance their cultural and education projects.23 An analogous picture could be seen in other regions of Russia. In North Osetia the republic’s authorities were afraid that the people of Osetia would be possibly broken into Kudartsy, Irontsy, and Digortsy. Head of the Altai Republic, for example, being afraid that the insufficient number of representatives of the “title nation” may result in the re-integration of the republic with the Altai territory, promised to report himself as an Altai.24 Local authorities encouraged the population to follow suit, having refused to acknowledge Chelkantsy, Teleuts, Telengits, and people of other ethnic bckgrounds residing in the republic as independent ethnic groups. 23 24 “Paper Tatars.” Obschestvo.Ru (October 10, 2002). G. Kovalskaya, “Arithmetics of National Discomfort.” Ezhenedelny Zhournal (#40, 2002). BAN ON INSTIGATION OF WAR, DISCRIMINATION AND VIOLENCE G. Kozhevnikova 2002 saw a continued rise in the activity of informal neo-Nazi youth groups (a.k.a. “skinheads”). Race/ethnicity-related street violence grew exponentially in magnitude as it targeted not only international students but spread to affect workers of diplomatic missions1 and citizens of C.I.S. countries. Attacks became so regular that formal representatives of foreign nations and ethnic groups had to take quite unprecedented steps to ensure their safety. A meeting was scheduled to address the situation on January 23, 2002, between seven African ambassadors, headed by A. Danioko, the Ambassador of Mali and Doyen of African diplomats in Moscow, and I. Ivanov, Russia’s Foreign Minister. However, the meeting never took place on account of the Minister’s busy schedule. Deputy minister A. Saltanov suggested that the ambassadors complain to the police2 despite the fact that previous complaints to the police had yielded virtually no results. The situation grew particularly stressful when in early April most foreign diplomatic missions in Moscow received e-mails signed by a certain “Ivan, President of Russian skinheads.” The e-mail asserted that on Hitler’s birthday, April 20, skinheads would kill all foreigners they came across.3 On May 18, the Russian Foreign Minister I. Ivanov met with the ambassadors of five nations who represented the entire diplomatic corps accredited in Russia: the Ambassador of Sweden (head of the delegation) representing Europe, the Ambassador of the Philippines representing South-Eastern Asia, the Ambassador of Gabon representing Africa, the Ambassador of Ecuador representing Latin America, the Ambassador of Cameron representing the British Commonwealth, and the Ambassador of Libya representing the Middle East.4 The ambassadors declared their joint protest against the wave of racism sweeping across the country. A month earlier, on April 15, concern about skinhead activity was expressed by the consulates of Azerbaijan, Armenia, Kazakhstan, Kyrghizia, Tajikistan, Uzbekistan, and Georgia in their letter to the consular department of the RF Ministry of Foreign Affairs. In the meantime, race/ethnicity-based violence still had a very wide geographical spread. In 2002, assault and battery cases in which the victims 1 In 2002, skinheads attacks involved diplomatic workers/family members from Kenya, Angola, Zimbabwe, the U.S., Cameron, Ghana. 2 S. Bazavluk, G. Charodeyev,“The White Terror: African Diplomats Get Beaten Up in Russia. The Authorities Take No Action.” Izvestia (February 8, 2002). 3 “Foreign Diplomats Scared of Skinheads in Earnest.” Izvestia (April 13, 2002). 4 V. Malyutina, “Shaved Heads the Ambassadors’ Concern.” Gazeta.Ru (May 20, 2002). 262 were non-Slavic in appearance were recorded in St. Petersburg, Rostovon-Don, Volgograd, Kursk, Voronezh, Stavropol, Vladimir, Surgut (Tyumen region), Saratov, Ivanovo, Tver, Irkutsk, Kostroma, Petropavlovsk-Kamchatsky, Novgorod, etc.5 It is noted that such incidents increasingly involve large groups of attackers (roughly 10) rather than individuals. The situation only exacerbated by the lack of an effective response from the executive authorities, first and foremost from the law enforcement bodies that prefer to turn a blind eye to the ethnic motives behind many such crimes and classify them instead as hooliganism. Also, in addition to cases of spontaneous violence, there were organized actions by skinhead groups on a larger scale than those conducted in 2001. In March 2002, a skinhead march was staged in St. Petersburg in February 2002. A group of young people numbering about 200 marched along Prospekt Prosvesheniya, shattering shop windows, advertisement boards, and beating up passers-by. Police records note that almost all of the ruffians were dressed according to “skinhead fashion” and over the entire duration of the march called out threats against “aliens” and urged that “Russia be cleaned of the blacks.” Notably, the police did not receive a single complaint from any victim.6 Soon after, in March, an organized rally of skinheads was held in Moscow. Its scope was such that traffic had to be stopped at Ryazansky Prospekt metro station as the neo-Nazi group was escorted by a police car. The march resulted in several wrecked cars. There also were some injuries.7 In April, an organized action was carried out in Orenburg where skinheads held a rally on the occasion of Hitler’s birthday8. In September, about ten dozen skinhead teenagers staged a pogrom against Armenians in Slavyansk-on-Kuban of the Krasnodar region.9 In September, several dozen neo-Nazis held a torch march in St. Petersburg.10 In view of the growing activity of ultra-nationalist radicals, it is not surprising that 2002 also saw spontaneous riots that had a noticeably nationalistic flavor to them. The largest riot occurred on June 9 in Moscow after the Russian soccer team lost to Japan at the World Cup 2002. A crowd of rioters surged from Manezhnaya Square to Tverskaya Street, shattering shop windows, overturning advertisement boards and cars, and battering passers-by. According to official data, 68 people applied for medical assistance, including 18 law enforcement officers (of which ten had to be hospitalized), one person was killed, a number of metro stations were damaged, eight cars were burned down and 40 damaged (including three police cars), and windows were dam5 “The H-hour Is Postponed.” Obshaya Gazeta (April 25, 2002); “Federation Council to OK the Law on Extremism while Kursk Is Already Managing Skinheads.” Obshestvo.Ru (July 4, 2002); A. Tarasov, “An Incendiary Mix with a Time Fuse.” Novaya Gazeta (August 1, 2002); A. Simonova “Official Racism.” Konservator (September 13, 2002); V. Matveyev “Routine Nationalism.” Vremya Novostei (September 16, 2002); S. Kazovsky “Nationalists the Government’s Ace?” Noviye Izvestia (October 15, 2002); ”Skinheads Active in Ivanovo.” Kolokol.Ru (March 27, 2002). 6 R. Ukalov, “The Pogrom on Prospekt Kultury: Following the Riots in Moscow, Skinheads Roam St. Petersburg.” Nezavisimaya Gazeta (February 18, 2002). 7 S. Bitsoyev, “Skinheads Declare War.” Izvestia (March 26, 2002). 8 V. Napolnov, “The H-hour Is Postponed. Orenburg.” Obshaya Gazet, (April 25, 2002). 9 D. Maltsev, K. Chumakov, T. Pavlovskaya, “Young People Are Having Fun.” Rossiyskaya Gazeta (September 18, 2002). 10 V. Kostyukovsky, “Trial Marches of St. Pete’s Nazis.” Noviye Izvestia (October 1, 2002). 263 aged at a number of stores, the Moskva Hotel.11 Rioters were particularly aggressive against Asian-looking passers-by; thus, five Japanese citizens and Si Chen, Chinese violinist and a participant in the P.I. Tchaikovsky Contest, were beaten up, and Jonka, a Chinese restaurant, was wrecked. On the evening of the same day, there was an attack against a Korean church in the Kapotnya district and another against a Vietnamese hostel.12 A month later, on July 7, large-scale anti-Armenian protests were held in Krasnoarmeysk (Pushkinsky district of the Moscow region). The protests were triggered by a fight in a local cafe in which a local man received a knife wound from G. Sayan, 43, a resident of the Ivanovo region. To take revenge for their friend, about 40 young men staged a pogrom on the next day in a street inhabited primarily by Armenians. Armed with baseball bats and chains, they broke into apartments and, shouting “Down with the blacks!” and beating up all of the non-Slavs they could identify by face that were in their way. About 20 persons were hospitalized.13 Notably, the local law enforcement authorities and the administration not only denied the anti-Armenian nature of the incident and its large scale14 but also supported a proposal to set up a city militia, a suggestion voiced at a rally of local people held on July 9 that was also anti-Armenian.15 Ethnic clashes also occurred in other cities of Russia. Thus, on Border Guards’ Day, celebrated in May, a group of drunken former servicemen attempted a pogrom against people from the Caucasus at the central open market in the city of Vladimir. As a result of a large fistfight, several participants in the pogrom ended up in hospital.16 The situation remains tense in the city of Uglich of the Yaroslavl region that has a sizable Chechen population. Tension peaked at the end of July 2002, when a Russian youth was killed in a brawl. Following the killing, a Chechen house was lit on fire and later, a Chechen was shot. In the following days, Uglich Chechens and Russian activists tried to intimidate each other by running convoys of vehicles through the city’s streets. On July 26, the unauthorized actions almost culminated in an all-out fight. The two parties had to be separated by the riot police. One policeman was injured.17 The Caucasus-phobia occasionally transforms into Islamophobia. For instance, an elderly mullah was beaten up in the town of Roshal of the Moscow region in November.18 11 Yu. Shekochikhin, “The Sub-Human Class.” Novaya Gazeta (June 17, 2002). However, there were different reports in the press. Thus, according to Noviye Izvestia, the pogrom resulted in 200 injured, including 70 hospitalized. The soccer fans’ actions damaged 240 installations in downtown streets, including 227 shattered windows and shop windows, 45 ad boards. Ye. Rubtsova “Who Will Be Held Responsible for the Riots?” Noviye Izvestia (June 11, 2002). 12 “Skinheads Attack Korean Church in Moscow.” NTV.Ru (June 10, 2002); “Skinheads Attack Vietnamese Hostel.” Kolokol.Ru (June 10, 2002). 13 V. Chesnokov, “Secret” Riots in Moscow Region.” Noviye Izvestia (July 9, 2002); V. Demchenko, V. Yemelyanenko, A. Mitrofanov, Ye. Chubarov, “Not So Easy As Cutting Water Melons.” Izvestia (July 9, 2002). 14 See: “Flight Critique: [An Interview with K.V. Kudoyarov, Chief of Krashoarmeysk’s police].” Gorodok (Krasnoarmeysk of the Moscow region, September 2, 2002). 15 M. Polunova, A. Podolsky “Krasnoarmeysk Rises to Fame.” Gorodok (Krasnoarmeysk of the Moscow region, July 12, 2002). 16 “Nationalist Extremism and the State.” Panorama.Ru (May 28, 2002). 17 “Conflict in Uglich: Citizens vs. Chechens. Correspondent’s Hour.” RFE/ RL (August 3, 2002). 18 “A Mullah Gets Severely Beaten Up by Teens in Moscow Region.” Polit.Ru (November 22, 2002). 264 Representatives of other ethnic groups also fall victim to ethnic xenophobia. In July, an unauthorized rally demanding that the town administration expel a nearby Roma camp was held in the Pashino community near Novosibirsk. The rally sounded calls to burn down the camp in the event that the Roma refused to go away. That rally caused the Roma to leave the area en masse, despite the fact that they had bought houses there.19 In September, a routine quarrel led to a mass fight between the Greek community and Cossacks in Yessentuki, Stavropol region, effectively sending five persons to the hospital.20 Anti-Semitism remains a widely spread form of xenophobia. It was under anti-Semitic slogans that a new type of terrorism emerged in Russia in 2002 that involves planting bombs under roadside boards carrying nationalistic texts. The first case of this type occurred on May 27, 2002, in the Moscow region. On the 32nd kilometer of the Kiev Highway, not far from Vnukovo Airport, a 28-year old muscovite, T. Sapunova, was badly injured as she attempted to remove a board with an anti-Semitic slogan on it. Following this incident, the prosecutor’s office of the town of Vidnoye, in the Moscow region, initiated a criminal case under Article 111, Part 2, paragraphs “v” and “e” “causing severe premeditated harm to human health by a generally dangerous method and motivated by ethnic hostility”21. However, only a few days later, N. Vaggin, Chief of the Leninsky district police, told journalists that: This is a disputable case, whether installation of such a board is a breach of law. I believe that from a formal standpoint the slogan “Death to Jews” does not constitute a call fanning inter-ethnic confrontation. They call anyone you can imagine a Jew in our country.22 Over several months following this incident, nationalistic boards popped up in various regions of Russia: on June 5, three such boards were installed in Voronezh; on June 12, a board was installed on the 83rd kilometer of the Moscow Outer Ring Road (MKAD); on June 17, in Krasnoyarsk; on July 4, in Vladivostok; on July 8, in a suburb of Tomsk; on July 15, in the Kemerovo region; on July 17, in Gatchina of the Leningrad region; on July 26, in Kaliningrad region; on July 30, in the Moscow region; on July 31, in Pravdinsk, the Kaliningrad region; on July 28 and September 2, in Moscow; on September 10, in Rostov-on-Don; on October 28, in the Moscow region. As a result of explosions triggered by attempts to remove the boards, two road construction workers were injured in Tomsk; one person was killed and a female passer-by injured in Baltiysk, in the Kaliningrad region. No one was killed or injured by the blast in Moscow on July 28. The other boards were fitted with mock bombs only. In a vast majority of the cases, texts on the boards were anti-Semitic23 and in a number of cases they were installed in the vicinity of synagogues. 19 “Nationalist Extremism and the State.” Panorama.Ru (July 17, 2002.). In Yessentuki, “Five Injured in a Mass Fight Between Cossacks and Greeks.” Polit.Ru (September 16, 2002). 21 “Bomb Explodes on Kiev Schosse in Moscow.” NTV.Ru (May 27, 2002). 22 “Russian Jews Demand Police Colonel Dismissed on Anti-Semitism Grounds.” Lenta.Ru (May 31, 2002). 23 One of the boards was anti-Russian, another simply obscene with no ethnic overtones, and the third contained anti-Semitic and anti-Caucasian slogans. 20 265 In 2002, there emerged another “novelty” related to anti-Semitism, the exploitation of ethnic antagonisms in the resolution of business disputes. In a conflict between several iron mills in Tula, one of the parties appealed to public opinion stressing the fact that its competitor’s administration was “not Russian;” that its CEO’s last name is Rabinovich; that the bank supporting the competitor has close ties to Israel, etc. As a result of this campaign, city of Tula soon saw leaflets with such slogans as “Russian workers must have a Russian administration,” which were quickly followed by other leaflets containing nationalistic, primarily anti-Caucasus slogans. The local administration and law enforcement deny that any inter-ethnic hostility has occurred.24 As before, several cases of desecration of and attacks against synagogues and Jewish cultural centers were recorded in 2002. In March and April, swastikas and anti-Semitic slogans were painted on synagogues in the cities of Kostroma, Petrozavodsk, and Perm. In April, there was an explosion near a synagogue in Krasnoyarsk; in May, the door of a Rostov-on-Don synagogue was set on fire. On October 20, a synagogue was shot at and on October 27 a grenade launcher was shot at Hased Atikva, a Jewish cultural/charity center in Novosibirsk. In December, a synagogue in Kostroma was attacked that had also been vandalized in the past. Nationalistic and neo-Nazi aggression also manifests itself in acts of vandalism targeting memorials and cemeteries. Thus, in April, graves and tombstones were desecrated at Slavyanskoye cemetery in Krasnodar,25 in the same month, 39 Tatar tombstones were vandalized in Aleksandrov of the Vladimir region26; in late May, a Jewish graveyard in Makhachkala was defiled; in June, more than 140 tombstones of German soldiers’ graves were destroyed in Krasnogorsk of the Moscow region; in July, several Moslem graves were destroyed at a Moslem cemetery in Volgograd; in December, tombs at several military graveyards in the Novgorod region were painted over with Nazi swastikas.27 In May, swastikas and anti-Semitic slogans were painted on a memorial to victims of Nazism in the Smolensk region; in October, the same was done to a memorial to victims of political repression in St. Petersburg.28 Meanwhile, the policy of the government is not consistent in its response to racial and ethnic violence or to relevant campaigns in the media. On one hand, attempts are certainly made to contain the activities of such organizations. These attempts were supposed to be strengthened by the adoption, in July 2002, of Federal Law “On Countering Extremist Activities29” and related amendments to effective regulations. However, the haste with which the law was passed — the first reading by the State Duma and the signing by the RF President were separated by less than two months (the first reading by the State Duma was held on June 6, and on July 25 the 24 V. Kochetkov, “An Organization Seeks Nazis. Urgent.” Noviye Izvesti (November 30, 2002). In most cases (19 out of 21) Armenian graves were affected, one grave was Azeri. 26 A. Trokhin, “Feel the Hostility.” Vremya MN (# 209, 2002). 27 “German Graves Desecrated in Moscow Region’s Krasnogorsk.” Polit.Ru (June 7, 2002); “Graves Desecrated at Moslem Cemetery in Volgograd.” Polit.Ru, July 10, 2002; “Nationalist Extremism and the State.” Panorama.Ru (October 25, 2002). 28 In St. Petersburg, vandals desecrate a memorial to victims of political repressions. NEWSru.Com (October 3, 2002). 29 Passed by the State Duma on June 27, 2002, approved by the Federation Council on July 19, 2002; signed by RF President on July 25, 2002. 25 266 President signed the law into effect) — resulted in numerous flaws in the language of the law and consequent concerns about the degree to which the law is appropriate and the many possible ways it can be abused in legal practice.30 The fact that the law was applied as early as October to eliminate the Omsk regional branch of the RNE (Russian National Unity) party31 (the case had been initiated on September 4) is an exception to the rule. As was the case in 2001, legal practices remain selective and inconsistent. In 2002, a whole series of steps were taken to fight ethnic hostility in the mass media. Along these lines, on July 17, a court ruling shut down a paper known as Russkiye Vedomosti for publishing materials of “extremist, nationalistic, and anti-Semitic nature;”32 on August 8, the magazine Russky Khozyain was closed because it on the grounds of “war propaganda, instigation of inter-ethnic hostility, and calls for seizing power;” and on September 20, Limonka, the paper of the Nationalist-Bolshevik party, was closed down.33 The Ministry of the Press issued a number of warnings against instances of instigation of inter-ethnic hostility; notably, these warnings targeted not only small-circulation or “marginal” media (such as Nashe Obozreniye of St. Petersburg, Russkaya Obshina Yekaterinburga, and Russkaya Sibir of Novosibirsk34), but also some quite sizable and respectable media as “Volga,” a Nizhni Novgorod broadcaster35. In the first half of 2002, even before the new anti-extremist law was adopted, the RF Ministry of Justice initiated the liquidation of six regional branches of the RNE in the Republic of Khakassia, the Khabarovsk and Krasnodar territories, and the Volgograd, Perm, and Tomsk regions.36. On July 30, the Khabarovsk territorial court ruled to eliminate the territory’s RNE branch.37 A criminal case under Article 282 (“Instigation of ethnic, racial, or religious hostility”) is ongoing against six skinheads in Kursk. The standard charge of hooliganism was changed to instigation of ethnic hostility over the course of the investigation.38 On the whole, however, courts either choose to ignore the ethnic motivation behind certain crimes or are simply tolerant of it. 30 See: A. Verkhovsky, The Government vs. Radical Nationalism: What to Do and What Not to Do? Moscow, 2002 31 “Local RNE branch to be liquidated in Omsk.” Lenta.Ru (October 10, 2002). 32 A. Grinyov “One Extremist Paper Less.” SMI.Ru (July 18, 2002) 33 However, the paper was soon registered in Belarus under the title General Guideline. Notably, this title is in fine print, while the Limonka logo is preserved. V. Bogomolova “Bald Apes’ Orgy.” Moskovsky Komsomolets (September 30, 2002). 34 B. Vishnevsky, “The Nelson Principle.” Novaya Gazeta (March 18, 2002); “Ministry of the Press Shuts Down Extremist Papers.” Strana.Ru, May 28, 2002; “Court Shuts Down Skinhead Magazine.” Dni.Ru (August 8, 2002). 35 On August 18, the broadcaster aired a material in a rather incorrect tone alleging that preparations were underway for an en masse movement of Chechen refugees to the Nizhnii Novgorod Region. On August 27, the Privolzhsky Interregional Department of the RF Ministry of the Press issued a formal warning to the editors. A lengthy litigation in various courts ensued, as a result, on December 4, the warning was declared void. 36 “Since 2001, the Ministry of Justice Has Issued about 8 000 Warnings of NGO’s Being at Variance with the Law.” Polit.Ru (October 23, 2002). 37 “One Out From the Ranks of Nationalist Patriots.” Obshestvo.Ru (July 31, 2002). 38 “Federation Council to OK the Law on Extremism while Kursk Is Already Managing Skinheads.” Obshestvo.Ru (July 4, 2002). 267 In January a criminal case was dropped against the Yekaterinburg eparchy that had published the “Protocols of Zion Wizards” in its paper. Notably, 14 deputies of the State Duma stood to defend the eparchy, including A. Greshnevikov, A. Chuyev, A. Shulga who asserted that the materials published and distributed by the eparchy “contained no calls to hatred and discrimination against representatives of a nation.”39 In February, considering a case against Kolokol, a radical nationalist and anti-Semitic paper (editor-in-chief S. Terentyev), the Volgograd city court determined that “materials published in the paper are unrelated to Nazism but justly criticize such political phenomena as Zionism, masonry, and Judaism.” On April 4, the Moscow city court issued a guilty verdict in the case against A. Ivanov-Sukharevsky, head of the People’s National Party and one of the chief skinhead ideologists, on the charge that he had instigated ethnic and racial hostility (Article 282 of the RF Criminal Code). He was sentenced to three years of probation and was immediately amnestied40. In July, Ya. Kanev got four years of probation under a similar article in Syktyvkar (Komi Republic) for organizing a riot at a Jewish Cultural Center,41 while in Voronezh, Zhigunov was sentenced to two years of probation in September for replication and mass distribution of nationalistic leaflets in April of 2002.42 On November 20, a guilty verdict was issued to participants in the pogrom at the Tsaritsyno market in Moscow (2001); in December, the first convicts received their sentences for their roles in the June pogrom at Manezhnaya Square in Moscow. Their sentences contained no reference to the nationalistic aspect of the crimes in spite of the fact that the accused themselves not only made no attempt to conceal their views, but in fact tried to emphasize them in every way possible.43 They were all convicted for murder and hooliganism. And as far as the case of the pogrom in the Yasenevo district of Moscow (April 21, 2001) is concerned, the Moscow city court opened the case for further investigation.44 Special attention should be paid to the case initiated in Saratov on July 8 against E. Limonov, the leader of the Nationalist Bolshevik Party (NBP), S. Aksyonov, the founder of the Limonka paper, and other party activists. They were indicted under Articles 205, 208, and 222 (setting up an illegal 39 “In Defense of the Yekaterinburg Eparchy.” Sobornost (#8, 2002). A. Fyodorov, “Aimed at Paragraph Five, Hit in the Face.” Tribuna (April 6, 2002). 41 N. Zyuzyev, “The Anti-Semitist in an Outhouse: the Republic Issues Its First Guilty Verdict in an Ethnic Hostility Instigation Case.” Vyorsty (July 13, 2002). 42 L. Lazarenko, “A Voronezh Student Convicted for Extremism.” Rossiyskaya Gazeta (October 1, 2002). 43 For example, the teenagers detained in Krasnoyarsk on charges of beating up workers from North Korea declared that the assault was misaimed as they had thought that the workers were from Kyrghizia. See: “Skinheads Beat Up Koreans Mistaking Them for Kyrghiz.” Grani.Ru (November 22, 2002). The prisoners detained in Kursk openly declared during the investigation that they had been guided exclusively by the color of the victims’ skin, with the final objective of “purging Russia from aliens.” See: “Federation Council to OK the Law on Extremism while Kursk Is Already Managing Skinheads.” Obshestvo.Ru (July 4, 2002). 44 The verdict of the Moscow city court was issued on March 5. The Prosecutor’s Office protested against the decision, but on May 15, Russia’s Supreme Court upheld the legality of the Moscow court’s verdict. Later, in July, the verdict was also confirmed by the Presidium of the RF Supreme Court . See: “Supreme Court Required the Yasenevo Pogrom Case Be ReInvestigated.” Lenta.Ru (May 16, 2002); “Prosecutors Ordered to Complete Investigation of Yasenevo Pogrom Case.” Lenta.Ru (July 24, 2002); “General Prosecutor’s Protest Turned Down, Yasenevo Pogrom Case to Be Re-Investigated.” Polit.Ru (July 24, 2002). 40 268 armed group; terrorism; illegal possession of firearms). On top of these, E. Limonov and S. Aksyonov have been incriminated for forcible seizure of state power and attempting to change the political system (Article 280 of the RF Criminal Code). It was found in the course of the court hearings that V. Linderman, the leader of Latvian Nationalist Bolsheviks, and not Limonov, had authored one of the texts on which the accusations of attempting to overthrow the existing regime were based.45 The circumstances of the prisoners’ detention and the evidence against them put in doubt the position of the prosecution and in fact discredited attempts to isolate activists of radical organizations through the courts.46 The attempt by the authorities to eliminate the NBP further discredits all anti-extremist activities. By the decision of the Moscow Regional Court of January 10, 2002, the procedure of liquidating the party was suspended on the grounds that the prosecutors used the materials of the “Limonov case” as evidence. The Moscow city court accepted the arguments of S. Belyak, the NBP’s attorney, who asserted that a decision must not be made based on materials of an unfinished criminal case, while the very fact of using such materials constituted a gross violation of the principle of secret and confidential investigations.47 Meanwhile, the National Bolshevik Party, in spite of the arrest of its leader, remained fairly active in 2002. Limonov’s people were the most noticeable participants of the “Anti-Capitalism-2002” action held on September 14—15. The event culminated in mass riots and clashes with the police on Triumfalnaya Square in Moscow, in which 90 persons were detained, all of whom were NBP members.48 There also were other, smaller-scale actions. In February, the Nizhni Novgorod branch of the NBP assumed responsibility for arson against the local branch of the Union of Right Forces (SPS).49 In June, NBP activists handcuffed themselves at the opening ceremony of the Riga-Expo exhibition, and in front of the State Duma in July. On November 5, during the opening ceremony of the Russia-EU Center of Energy Technologies in Moscow, O. Shalina, a member of the NBP, threw a lemon cake at F. Lamoure, an EU representative.50 The most prominent in this group of events was the failed attempt to throw tomatoes at Mr. G. Robertson, NATO’s Secretary General, during his speech at the NATO summit in Prague on November 22.51 Nationalist Bolsheviks still continue their practice of throwing paint bottles at embassy buildings. In 2002, the Embassy of Estonia suffered from these attacks twice (in May and in No45 N. Andreyeva, “Abel in the Place of Limonov: Who Is the Defendant in Saratov?” Vryemya MN (November 20, 2002). 46 For details of the detention and the investigation, see V. Likhachyov, Nazism in Russia (Moscow, 2002, pp. 92—93). 47 M. Sorokina, “Liquidation of Eduard Limonov’s Nationalist Bolshevik Party Suspended.” Strana.Ru (January 10, 2002). 48 Notably, a number of leftist organizations participated in the action apart from the NBP, including “Working Russia,” the Union of Communist Youth, the “Advance Guard of Red Youth (AKM),” the Russian Communist Union of Bolshevik Youth (RKSMb). See: “Mass Riots in Moscow.” Dni.Ru (September 16, 2002); I. Sukhov, “A Capitalist-Style Response.” Vryemya Novostei (September 18, 2002). 49 “Nationalist Extremism and the State.” Panorama.Ru (February 18, 2002.). 50 “European Commission Bureaucrat Gets a Cake from Limonka.” Lenta.Ru (November 5, 2002). 51 G. Papernaya, M. Demidenko, “Tomato ‘im! NATO’s SecGen Attacked by Russian Extremists.” Kommersant (November 23, 2002). 269 and in November), while the Danish embassy was targeted in October.52 All things considered, the NBP was Russia’s most active radical organization in 2002. The lack of a clear-cut position of the government in relation to these manifestations of inter-ethnic hostility has served to encourage the emergence of new public organizations that include aggravating ethnic tensions and provoking ethnic/religious violence and discrimination in their agenda. Thus, after the pogrom in Krasnoarmeysk (see above), a Movement against Illegal Migration took shape on July 12. In its Declaration, the organization calls for opposing “illegal immigrants,” using any means available, including legislative restrictions on marrying them, making legal agreements with them, etc.53 What caused the most public repercussions, however, was registration by the RF Ministry of Justice of the National State Party of Russia (the NDPR), at the founding convention of which openly ultra-nationalist appeals had been made. One of the party’s co-chairmen, B. Mironov, said in his speech: It must be stated clearly that the party is being created to achieve one goal, rising to power… We make no secret of it that it will be a nationalist party that will move to gain power. Not a party of patriots, but, and I stress it, a party of nationalists… We are going to prove that the parliamentary way is a false way… Let us squeeze out all that Jewish democratic stuff that they have been stuffing us without us noticing… We have a common enemy, the Jew, and a common goal, a change of power.54 It was only as a result of the scandal that arose after numerous media published records of NDPR leaders’ speeches that the Ministry of Justice announced that it was initiating an audit of the party. Comparing this with the fact that, as the Ministry of Justice and the Prosecutor General’s Office declared at one of their briefings, their primary focus in 2002 was on auditing “such a scandalous public movement as the Russian National Unity”(RNE) (see above),55 it can be inferred that the authorities whose duties involve countering extremist organizations pay attention to them only after public opinion makes ignoring them no longer possible. In the meantime, a significant proportion of statesmen continue either denying or taking no notice of the sometimes violent manifestations ethnic conflict. Thus, the Moscow prosecutor office has declared that Wahhabism and not nationalism constitutes the key threat to the state.56 Only a month before the large-scale action of skinheads on Hitler’s birthday, General V. Pronin, Chief of the Moscow police, said that skinheads existed in journalists’ imagination, while in fact being, as a rule, soccer fans.57 A few months later, in June, V. Papsuyev, head of a department within the Main Criminal Investigation Directorate of RF Ministry of Internal Affairs, declared 52 “Limonov’s Followers Attack Estonian Embassy.” Gazeta (May 14, 2002). “Krasnodar and Krasnoarmeysk, the capitals of nationalism.” Obshestvo.Ru (July 12, 2002). 54 S. Agafonov, “Ministry of Justice Registers Nazis.” Noviye Izvestia (September 26, 2002). 55 Since 2001, the Ministry of Justice has issued about 8 000 warnings about NGO’s being at variance with the law. Polit.ru ( October 23, 2002). 56 S. Teplov, “Extremism Has Firmly Become Part of Our Lives.” Yezhednevnye Novosti. Podmoskovye (April 2, 2002). 57 M. Stechkin, “The Police Decrees Away Skinheads and Waifs.” Gazeta.Ru (March 21, 2002). 53 270 that not a single crime had been registered in Russia that was targeted against foreigners on racial or religious grounds.58 The declaration made by the police chief of the Leninsky district of the Moscow region, N. Vaggin, in response to the anti-Semitic plank left on Kiev Highway (see above) has yielded no results whatsoever. And it is but the same N. Vaggin who authored a letter sent to the directorate of an open market in Vidnoye of the Moscow region that noted that, “according to customers’ complaints, there are large numbers of foreign nationals (Uzbeks, Tajiks, Azerbaijanis, and citizens of other C.I.S. countries) illegally working and living at the market without registration.” Following this letter, an ethnic purge of open markets was staged in September 2002.59 In the spring of 2002, a set of laws aimed at liming migration that had been adopted by the legislative assembly of the Krasnodar territory attracted significant public attention, as did the comments of the territory’s Governor, A. Tkachyov. Those laws required that illegal migrants be expelled from the territory and they established an administrative liability for harboring them. As implementation mechanisms were discussed for these laws, there were proposals to increase the fine for failure to obtain registration [as a resident] to 6 000, to set up processing centers to be operated by the territory’s police headquarters that would hold illegal migrants until deportation, and to set up “immigration centers” where incoming people could be kept for approximately ten days while their papers were being validated. Commenting on these laws, Governor Tkachyov said, in particular, “Determination of whether an immigrant is legal or illegal can be made by his or her family name, by the name’s ending, to be exact. Family names ending with “-yan,” “-dze,” “-shivi,” “-ogly” are illegal, just like their bearers.”60 In April, the Krasnodar territory’s prosecutor’s office announced that it intended to contest the regulations adopted by the legislative assembly in court. However, no action was taken in response to the Governor’s statements. Moreover, there was no major conflict at the Governor’s April 5 meeting with V. Putin on relevant issues to the Krasnodar territory61. The war in Chechnya remains a major contributor to inter-ethnic tension. The situation grew particularly tense after the seizure of the Dubrovka Theatrical Center in Moscow. For the fear of large-scale inter-ethnic conflicts, the Ministry of Internal Affairs even had to establish a telephone hotline to receive reports on cases of inter-ethnic aggression, hostility, or pogroms.62 However, the Moscow police department asserted that no antiCaucasian actions had been registered in relation to the Dubrovka hostagetaking. At the same time, the media more than once reported not only 58 “No Crimes Are Committed in Russia Against Aliens on Racial or Religious Grounds.” Russkaya Liniya (June 21, 2002). 59 K. Kostandi, “Position Swaps on 41st Kilometer.” Vidnoye.Ru (June 3, 2002). 60 Quoted by: I. Bederov, “Illegal Surname.” Novaya Gazeta (July 11, 2002). 61 “Kuban Initiates a Large-Scale Campaign Against Migrants.” Kolokol.Ru, March 21, 2002; A. Shalayev, “Kuban to Expel Migrants.” SMI.Ru (March 28, 2002); “The Issue of Nationalism in Russia.” Izvesti (April 19, 2002); A. Bogomolov, “The Kuban Order.” Noviye Izvestia (April 26, 2002); “A Person Has the Right.” RFE/RL (April 25, 2002). 62 “The Ministry of Internal Affairs has opened a hotline to receive reports on ethnic aggression cases.” NEWSru.Com (October 25, 2002). 271 cases of people of Caucasian origin being beaten up in the streets of Moscow,63 indifference to these crimes on the part of the law enforcement agencies. Mass passport checks were reported, along with ungrounded detentions, forced dactyloscopy64 and open forging of criminal cases on the grounds of illegal possession of firearms and drugs by ethnic Chechens.65 Notably, such actions were conducted not only in Moscow but also in other regions of Russia.66 In addition, at the height of the “fight against terrorism,” a mass deportation of illegal immigrants from Tajikistan was staged. Therefore, in spite of gradual legal improvements in some areas— which include the bans on calls for war, discrimination, and violence — the trends noted in our previous reports continue to exist. These include increased activity of neo-Nazi teenage groups, growing overall xenophobia sweeping across Russian society, discriminatory practices by law enforcement, and overall indifference of the governmental, law enforcement, and judicial authorities to the racial/ethnic motivations behind many breaches of the law. 63 “Two Azeris Beaten Up in the Capital.” Newsru.Com, October 29, 2002; “A Man from the Caucasus Severely Beaten Up Near Petrovskoye-Razumovskoye Underground Station.” Newsru.Com (October 24, 2002). 64 “Chechens Across Russia Forced to Leave Their Fingerprints with Police.” NEWSru.Com, October 29, 2002. 65 See: S. Gannushkina, “October 24 — December 4. Monitoring of Persecution of Chechens and other Persons of Caucasian Origin in Moscow after the Events of October 23, 2002. Cases of Criminal Indictment of Moscow’s Chechens Involving False Evidence.” http://www.refugee.ru/news/news.htm. 66 “A Man from the Caucasus Severely Beaten Up Near Petrovskoye-Razumovskoye Underground Station.” Newsru.Com (October 24, 2002). THE STATUS OF SEXUAL MINORITIES1 A. Sutyagin This article has been written on the basis of analysis of information obtained from open resources and in the course of an expert survey conducted by the author.2 Unfortunately, the problem of the violation of rights of homosexual individuals is largely of a hidden character, which is accounted for by the fear of disclosing one’s sexual identity, an undeveloped legal culture, doubt that there are effective legal protection mechanisms, and the insufficient social and political activeness of homosexuals. The surveyed representatives of organizations for gays and lesbians were able to provide data on the very few cases known to them of violations of rights and the discrimination of homosexuals, which, according to the unanimous opinion of experts, does not in the least mean that such cases are indeed rare. This is why even the fragmentary reports of organizations, private individuals, and mass media that allow one to envision the true status of homosexuals are ever so much more meaningful. We hope that the publication of the material provided herein will not only inform the general public about the status of Russian homosexuals and the key development trends in 2002, but will also facilitate more active discussion of the problems associated with the protection of rights of this social group within the human rights community, which so far has not paid enough attention to the discussion of this subject. * * * In 2002, the legal and factual status of sexual minorities in Russia practically did not change. The positive trends which had previously emerged developed slowly. There are grounds for concern in connection with attempts by 1 The term “sexual minorities” (gays and lesbians, homosexuals) includes homosexual and bisexual men and women. 2 The following experts were surveyed: Alexander Barannikov, Deputy Chairman of the “Union of the Right-Wing Forces” faction that condemned the proposal to reinstate criminal penalty for homosexual relations; Professor Igor Kon, author of books on homosexuality; Nicolas Alekseyev, author of books on legal regulation of the status of sexual minorities; Masha Gessen, author of one of the first reports on the status of sexual minorities in Russia (1994); Ignat Fialkovsky, leader of the youth human rights organization “Association HS” (St. Petersburg); Professor Alexander Kukharsky, President of the St. Petersburg human rights center for gays and lesbians “Krylia;” Andrey Akhramovich, leader of the human rights center “Siberian Alternative” (Omsk); Konstantin Yegornov, President of the Murmansk regional organization of gays and lesbians “Krug.” Quotation without reference means that the quoted opinion was expressed by the quoted individual in the course of an interview conducted within the framework of the given expert survey. 273 some politicians to restrict the rights of representatives of sexual minorities through the use of populist slogans of protecting public morale, which are used to raise their popularity among voters. The year’s events have clearly demonstrated both the evident progress achieved in the acknowledgement of the rights of homosexuals in Russian society, and the obvious insufficiency of the level of acknowledgement of these rights, continuing discrimination, and the practically total inaction of the state with respect to the improvement of the status of sexual minorities in Russia. The central event in the year 2002 that demonstrated the standpoint of the state, the level of the development of legislation, as well as the level of maturity of civic awareness of homosexuals themselves, was the legislative initiative to reinstate a criminal penalty for consensual sexual intercourse in a private setting between men of the legal age of consent.3 On April 22, 2002, a group of deputies from the State Duma that are members of the “People’s Deputy” faction, headed by G. Raikov, the faction leader, introduced a package of amendments to the RF Criminal Code that would impose a criminal penalty in the form of imprisonment for the period of one to five years for “unnatural satisfaction of sexual needs of a man with another man (sodomy).” The explanatory note attached to the amendments package specified that the above notion should be interpreted as anal penetration (other forms of sexual activity between men, as well as sexual relationships between women,4 were not to be considered criminal). Additionally, the explanatory note to the draft legislation specified that the amendments were targeted at “strengthening public morale, the family institute, and the health of the citizens of Russia,” and were to facilitate the combat against venereal diseases and AIDS, as well as prevent underage prostitution and the proliferation of pornography.5 Trying to defend their proposal when interviewed, the authors of the draft legislation6 (on whose behalf G. Raikov predominantly spoke) made numerous statements which should be univocally qualified as homophobic. For example, G. Raikov said to journalists: “Homosexuality is a deviation from the norm, and it is obvious.” “Nobody will peep through a hole to see what people do in a dark room, but should an act of sodomy be conducted in a demonstrative or violent manner, then it would be impossible to avoid liability.”7 It is worth mentioning that Russian legislation already contains provisions penalizing violent and public actions of both a hetero- and homosexual nature, therefore the words of G. Raikov deprive his own proposal of any sense. The most influential Russian politicians did not comment on this legislative initiative. The reaction of the majority of parliamentarians who had ex3 According to the current Russian legislation it is 14 years for both heterosexuals and homosexuals. 4 Deputy À. Mitrofanov (LDPR faction) suggested that homosexual relationships between women should be penalized as well, in order to comply with the equality of sexes principle guaranteed by the RF Constitution. 5 “The State Duma Wants to Introduce Criminal Penalty for Sodomy” (http://gay.ru/news/ rainbow/2002/04/22.htm). 6 Among other authors of the draft legislation there were V. Bulavinov, G. Makhachev, Z. Mutsoyev, as well as D. Rogozin, Chairman of the Russian parliamentary delegation at PACE, who later denied his participation in the development of the draft legislation. 7 Without amendments to the RF Criminal Code, according to G. Raikov, “the deputies will not be able to look their voters in the eye” (http://gay.ru/news/rainbow/2002/04/30a.htm). 274 pressed their attitude towards this initiative was negative.8 Some deputies from the SPS faction openly defended the rights of homosexuals.9 Deputy A. Vulf later made a proposal to legally ban discrimination on the basis of sexual orientation. However some politicians supported G. Raikov and other deputies.10 On behalf of the executive power it was Vice-Prime Minister, V. Matviyenko, who condemned the initiative.11 On the whole, the initiative of Deputy Raikov and his colleagues played a positive role. N. Alekseyev noted that: “Homosexuality is no longer a taboo subject for public discussion.” “From now on politicians of the highest rank will be able to say the word out loud, and this is great progress already.” The subsequent recovery of both public discussion of homosexuality, and activity of gay and lesbian organizations triggered by the legislative initiative in question, allows one to expect certain positive consequences in the future, such as, for example, a higher level of tolerance with respect to sexual minorities in Russia, the introduction of a legal ban on discrimination based on sexual orientation, and more a comprehensive acknowledgement of homosexuals’ rights. For the first time in the entire history of post-Soviet Russia, a proposal from a group of deputies made homosexuality the subject of active debate in the mass media, the majority of which condemned it. M. Gessen notes, “The reaction of the mass media was pleasantly surprising — practically all the leading mass media outlets reacted with indignation.” In addition, the legislative initiative of Deputy Raikov and his colleagues resulted in a revival of the activities of gay and lesbian organizations, whose reaction towards the initiative followed the very same day it was presented by the “People’s Deputy” faction. Besides the rally at the State 8 For example, deputy leader of the “Unity” faction, V. Reznik, declared that such proposals will “undoubtedly trigger sharp criticisms from the Council of Europe and… it is difficult to view them as rational” (“The Draft Legislation on Banning Sodomy is Condemned by Deputies and Human Rights Activists, http://gay.ru/news/rainbow/2002/04/24.htm). First Deputy Chairperson of the State Duma, L. Sliska, expressed a hope that “the deputies will be reasonable enough to not consider this issue at all” (same source). Chairman of the Federation Council, S. Mironov, commented on the draft legislation in the following manner, “Looking at such legislative initiatives one may think that all other problems in Russia have already been solved…” (“Speaker of the Federation Council Sees no Sense in New Amendments Affecting Homosexuals,” http://gay.ru/news/rainbow/2002/05/17a.htm). 9 In particular, A. Vulf supported the people who protested against the adoption of the draft legislation in the course of a rally at the State Duma building that was organized by the Transnational Radical Party, and in his statement he labeled the draft law developed by G. Raikov and his colleagues as “directly violating fundamental human rights, introducing discrimination based on sexual orientation, and inciting hatred and enmity within the society” (Statement of Deputy of the State Duma, A. Vulf, http://www.gay.ru/news/rainbow/2002/ 04/28b.htm). Leader of the SPS faction, B. Nemtsov, supported the position of Deputy A. Vulf (“Andrey Vulf Developed Draft Law Introducing Criminal Liability for Incitement of Sexual Enmity,” http://gay.ru/news/rainbow/2002/04/28.htm; “Boris Nemtsov does not Want Authorities to Go in People’s Beds,” http://gay.ru/news/rainbow/2002/04/29.htm). 10 For example, R. Abdulatipov, representative of the Saratov region in the Federation Council, declared that “this provision should have been reinstated in the Criminal Code long ago.” “Homosexuality lies outside of our traditions and our customs; it is abnormal” (“R. Abdulatipov Supports Initiative of State Duma Deputies to Introduce Criminal Penalty for Homosexuality,” http://gay.ru/news/rainbow/2002/04/24a.htm). 11 “This measure is irrational and unacceptable.” “If there is a problem it must be solved, but not by way of introducing a criminal liability.” (“Duma Unlikely to Consider Homophobic Law Amendments,” http://gay.ru/news/rainbow/2002/04/25a.htm). 275 Duma building organized by the Transnational Radical Party on April 26, local public organizations in Yaroslavl, “Socialist Resistance” and “Autonomous Action,” organized a Tolerance Day on June 4, within the framework of which a mass rally was held to defend the right to a private life, and to condemn the legislative initiative to reinstate a criminal penalty for consensual homosexual relationships. The St. Petersburg organization “HS” informed the European chapter of the International Lesbian and Gay Association (ILGA-Europe) about the draft legislation under discussion, and the latter communicated this information to P. Schieder, President of the Parliamentary Assembly of the Council of Europe. On April 22, the “I+I” awareness center, which was created on the basis of a popular gay website, Gay.Ru, distributed a press release in which it decisively condemned the initiative to reinstate criminal penalty for consensual homosexual relationships as a rude attempt to interfere with private life and violate the provisions of fundamental international legal documents. The press release made it clear that the center was prepared to organize actions of civil disobedience in the case that the draft legislation should pass. The draft legislation is still being reviewed by the Legislation Committee of the State Duma. Deputy A. Barannikov, a member of the Committee, had suggested that the parliament’s lower chamber should consider the draft law during its spring 2003 session, which, however, never happened. Many experts12 are of the opinion that the amendments suggested by Deputy G. Raikov and his colleagues will not be considered by the State Duma at all. Experts agree that the fact that such a legislative initiative was put forth at all can be accounted for by the desire to gain political advantage on the eve of the 2003 parliamentary elections, and draw the public’s attention to the People’s Party led by Mr. Raikov.13 According to N. Alekseyev “the reinstatement of a criminal penalty for homosexuality… contradicts a whole number of provisions of the Russian Constitution and the obligations assumed by the Russian Federation when she signed the European Convention…” Adoption of the draft law would have undoubtedly resulted in the violation of Russia’s international obligations, the fact of which Russia’s representatives in the Parliamentary Assembly of the Council of Europe were warned.14 The very fact that such a legislative initiative was put forth in country’s parliament, as well as the statements that followed it, characterize the situation of the acknowledgement of sexual minorities’ rights in Russia quite adequately. The reaction of colleagues of the authors of the draft law was, although negative, still rather reserved. As noted by I. Kon, “the ma12 For example, I. Kon states: “I am sure that this draft law, as well as the analogous proposal of Deputy Mitrofanov, will not even be discussed by the Duma.” 13 G. Raikov points out to that himself: “In 2003 the deputies will go for re-election, many of them — from single mandate districts — and the adoption of this law is vital for them in order for them to be able to look their voters in the eye with dignity” (G. Raikov thinks “deputies will not be able to look voters in the eye” without amending the RF Criminal Code (http://gay.ru/news/rainbow/2002/04/30a.htm)). 14 N. Alekseyev, “Homosexuality in Russia: Current Legal Trends.” ILGA-Europe Newsletter. — Volume 2, issue 1, August 2002. p. 16. 276 jority of public politicians reacted cautiously, having resorted to humor and remarks like “They have nothing better to do!”; rights of homosexuals were openly defended only by some deputies from the SPS faction.” The same can be said about the reaction of the mass media, for which victimization of sexual minorities was characteristic. I. Kon notes that “the low level of awareness and sexual education of journalists is upsetting.” And according to À. Barannikov, “very few showed a desire to offer a serious analysis of the issue; the majority of mass media outlets preferred either to simply make fun of the authors of the draft law, or discuss some of the terms with a relish…” “Often, the priorities were identified in the following manner: maybe it is correct at the current stage, but it is not the state’s business to regulate this sphere of relationships.” * * * In 2002, Russian legislation did not undergo any changes when it came to regulating the legal status of sexual minorities.15 The only normative document that directly discriminates against homosexuals today is the Order of the Minister of Health from September 14, 2001 “On Establishing the Order of Medical Examination of the Donor of Blood and its Components” (registered by the RF Ministry of Justice on October 31, 2001 as #3001), that in fact reiterates the provisions of a previous, analogous document — “Instructions for Medical Examination of Donors of Blood, Plasma, and Blood Cells” of November 16, 1998. According to the given order, individuals “associated with risk groups (homosexuals, drug addicts, and prostitutes)” may not donate blood and/or its components.16 The most significant flaw of the Russian legislative base is the lack of a legal ban on discrimination based on sexual orientation in various branches of the law (first and foremost, in the criminal, and the labor law), as well as the lack of legal regulation of same sex partnerships, which creates premises for the violation of rights and discrimination of homosexuals in a variety of spheres. Although acknowledgement of homosexual partnerships, and the rights associated with them, is most likely to be envisioned as a topic to be left for the future,17 introduction of amendments designed to protect gays and lesbians from discrimination is an actual task of the legislature. Addressing this issue might put an end to the stagnation of Russian legislation with respect to the acknowledgement of the rights of sexual minorities. N. Alekseyev notes: In 1993, Russia and, for example, Ireland, were practically in the same starting conditions: the criminal penalty for homosexuality had been abolished in both countries; but as opposed to Ireland, which did not stop at that and adopted an enormous amount of anti-discriminatory legisla15 For more detailed analysis of the Russian legislation as it regulates the legal status of sexual minorities see N. Alekseyev, “Legal Regulation of the Status of Sexual Minorities: Russia in Light of the Practices of International Organizations and National Legislation of World’s Countries.” (Ìoscow: BEK, 2002) For more details see Human Rights in Russian Regions (Moscow: Moscow Helsinki Group, 2002, pp. 273 — 279). 16 N. Alekseyev, “Homosexuality in Russia: Current Legal Trends.” ILGA-Europe Newsletter. — Vol. 2, issue 1, August 2002. — P. 15. 17 According to N. Alekseyev “research shows that in the world the process of affirmation of rights of sexual minorities is characterized by a well-defined sequence of steps: it is impossible to legally allow same sex marriages in a country in which there is no protection of gays and lesbians from discrimination on the basis of sexual orientation in a variety of spheres.” 277 tion and have closely approached the solution of the problem of the registration of same sex unions, Russia did not see any real continuation of process over the 10 years that have passed since the criminal penalty for sodomy was abolished. A. Vulf’s proposal to introduce a ban on discrimination on the basis of sexual orientation, which he expressed to counter-balance the initiative of the “People’s Deputy” group, is not likely to see any development in the near future. “Many politicians understand that such a problem exists, but they think that at the current stage in Russian history it is not advisable to mention discrimination on the basis of sexual orientation in Russian laws,” says A. Barannikov. Currently none of the political parties or public movements represented in the lower chamber of the country’s parliament has openly expressed its attitude towards the subject of the rights of sexual minorities due to fear of negatively affecting the position of their respective party or movement. Accusing someone of being a homosexual is still one of the most popular cheating techniques used to compete with rivals in election campaigns. And the example of the “People’s Party” indicates that homophobia can be used to raise one’s popularity among voters.18 Among the most frequently encountered violations are beatings of homosexuals, threats of physical assault, and blackmailing. The Murmansk human rights organization “Krug” has obtained information about 26 incidents of beatings of homosexuals that occurred in 2002 in the Murmansk region (data valid as of October 2002). In the overwhelming majority of cases, the victims who had suffered severe physical injuries and had to be institutionalized refused to file complaints with the police. The refusal of law-enforcement agencies to prosecute illegal actions taken against homosexuals (beatings and thefts, as a rule) causes the greatest concern. Such cases are known to have taken place in Moscow, Yaroslavl, and Murmansk. However, it is possible that they are much more widespread. The level of legal awareness among representatives of sexual minorities in Russian provincial cities, as well as the degree to which they are protected, is illustrated by the leader of the Murmansk organization “Krug,” K. Yegornov, who says: We use the police in the following manner: they do not want to put anyone in prison, but what they do want is money. Therefore, if someone has been beaten up, we use the police to extort money from the perpetrators to pay for the labor of the police officers and medical treatment of the victim. The same organization reports a case where a woman who had worked as a secretary at a state enterprise for 15 years was dismissed when her colleagues found out about her family relationship with her female partner. Her management forced her to write a notice in which she stated she was leaving of her own accord. I. Fialkovsky and K. Yegornov report cases where homosexuals were expelled from graduate school when their scientific leader and/or chair had 18 Party’s leader, G. Raikov, even went as far as to state that his party was going to the 2003 parliamentary elections with a strong intention to introduce criminal prosecution of “nontraditional sexual currents” (“Raikov’s Party Wants to Reinstate Death Penalty and Imprison Homosexuals,” http://www.newsru.com/russia/30nov2002/ray.html). 278 found out about their sexual orientation, as well incidents when dissertational research associated with the subject of homosexuality was prohibited. The federal executive power practically does not undertake any measures to improve the status of sexual minorities. N. Alekseyev is of the opinion that “the state is content with the current situation, and it does not want to undertake any measures that might cause any controversy within society.” A. Barannikov states, “I see no steps that could be characterized as some activity in this direction.” “As far as federal executive authorities are concerned, they are too busy, and they do not want to pay any attention to the problem of the rights of sexual minorities.” Federal Program “On Promotion of Principles of Tolerance and Prevention of Extremism in the Russian Federation (2001—2005)” adopted by the Russian government in 2001 did not mention the status of sexual minorities, having narrowly interpreted the notion of tolerance as tolerance only with respect to religion and representatives of other nationalities. Russia still lacks sex education programs in secondary schools, which could help instill the basic principles of tolerance with respect to sexual minorities. After the failed attempt of the Ministry of Education to introduce, with the support of the UN, experimental sex education programs for secondary schools in 1996, no further actions have been undertaken in this direction. I. Kon remarks, “The crusade against sex education in Russia initiated in 1996 continues, as does the clericalization of the Russian education system.” In the meantime, the level of tolerance in Russian society (especially in the province) with respect to sexual minorities is one of the lowest in Europe. The lack of regular research does not allow one to precisely evaluate the dynamics of the level of tolerance with respect to homosexuals, as well as the perception of certain aspects of the rights of sexual minorities by the general public. Nevertheless, results from certain research can provide a general picture of the situation. Raikov’s remarks victimizing homosexuals (“homosexuals may be sympathized for, and they have to be medically treated”19) quite adequately reflect the attitude towards sexual minorities within Russian society in general. For instance, according to a public opinion poll conducted by the AllRussian Center for Public Opinion Research (VTsIOM) in February of 2001, 67% of Russians thought that homosexuality is “immoral,” “a bad habit,” “a disease or a result of psychological trauma.” Only 20% of the respondents were of the opinion that homosexuality is “a sexual orientation that has the same right to exist as the regular sexual orientation.” In 1998 responses to the same question were distributed approximately the same. To the question asked by VTsIOM in Moscow in March of 2002 “Do you think it is normal and admissible to have sexual relations with a partner of the same sex?” 76% of Muscovites answered that it was “abnormal, inadmissible.” In September of 2001, VTsIOM conducted a survey among Muscovites in order to find out what their attitude was towards the prohibition of the 19 G. Raikov: “I am a fastidious man. I will never shake hands with the mayors of Paris and Berlin” (http://gay.ru/news/rainbow/2002/04/30b.htm). 279 Love Parade20 by Moscow authorities, which indicated that 65% of the respondents approved of the prohibition. On the whole, activities of the organizations established specifically to protect rights of gays and lesbians are rather limited, first and foremost due to insufficient funding (Russian organizations for gays and lesbians, as a rule, operate on grants they receive from foreign partner organizations), as well as due to homosexuals’ lack of consolidation and low level of civic activity. K. Yegornov notes, “It is truly upsetting that Russian organizations are predominantly occupied with looking for funding instead of really working, and that there is no connection among us, no mutual interest.” It is worth mentioning that of the 12 organizations whose corporate profiles are available on the Internet, only four responded to our proposal to cooperate within the frames of the given research effort. A special hardship that gay and lesbian human rights organizations encounter in their activities (it is especially true for those working in the provinces) is discrimination from state authorities. As reported by the Murmansk public organization “Krug,” groups such as the “AIDS-Center,” the regional division of the Red Cross, and some other local organizations received an unofficial letter from the administration of the Governor of the Murmansk region encouraging them to refrain from cooperating with this organization. This happened after K. Yegornov, leader of the “Krug,” informed the Minister of Foreign Affairs of Sweden about the impediments posed for the activities of his organization by regional authorities, and about the insults that his employees had suffered from a variety of officials from different regional power bodies, and the latter raised this issue when meeting with the Governor of the Murmansk region. As it was previously mentioned, Russian homosexuals as such are characterized by a low level of legal awareness and social and political activity. According to I. Fialkovsky, “the majority of homosexuals still go out of their way to conceal their orientation.” Very indicative was the response of one of the visitors at a website for homosexuals in Nizhny Tagil to our request to advise us on known cases of violations of the rights of homosexuals (in particular, in the working place): “Well, we are not in the habit of putting this on display…” This was the only response to the messages that we had left on ten websites for homosexuals of Vladivostok, Ekaterinburg, Irkutsk, Kaliningrad, Kostroma, Yaroslavl, Krasnodar, Cheliabinsk, and St. Petersburg. All of this results in the concealment of the true scale of discrimination and violation of the rights of representatives of sexual minorities, and in the perpetuation of the illusion that this social group’s well-being. N. Alekseyev notes, “The uniqueness of the Russian situation is that the judicial power has not made a single ruling related to the rights of gays and lesbians. It is impossible to imagine something like this in other developed countries where a multitude of precedents exist.” 20 For more details see Human Rights in Russian Regions (Moscow: Moscow Helsinki Group, 2002, pp. 273—279). 280 ANNEX LIST OF REGIONAL ORGANIZATIONS-MEMBERS OF THE HUMAN RIGHTS MONITORING NETWORK: Region Organization Coordinator Adyg Republic Maikop City Public Organization “South-Russian Independent Institute of Social Researches Tsvetkov Oleg Aginsky Buryatsky autonomous district Regional Public Movement “Razvitie” Damdinov Tsyrendorzhy Altai Republic Public Environmental Organization “Treasurers of the Lake” Veselovskaya Olga Altai territory Altai Territorial Human Rights Public Organization “Bastion” Blem Andrej Amur region “Amur Center of Human Rights” Regional Public Organization Morar Oleg Arkhangelsk region Arkhangelsk Branch of All-Russian Public Movement “For Human Rights” Gabidulin Rauf Astrakhan region “Committee of the Assistance to the Protection of Legal Human Rights” Astrakhan Regional Public Organization Stepanova Tatiana Bashkortostan Republic (Bashkortostan) Public Foundation “International Standard” Potnin Konstantin Belgorod region Shebekinsk Public Organization “Civic Agreement” Sheglova Tatiana Bryansk region Bryansk Regional Public Charity Organization “Human Rights Association” Komogortseva Ludmila Buryat Republic (Buryatia) Public Organization “Republican Human Rights Center” Kislov Evgeny Chechen Republic (Chechnya) Interregional Public Organization “Society of Russian-Chechen Friendship” Ezheev Imran Chelyabinsk region Chelyabinsk City Youth Public Organization “Human Rights Protection” Sevastianov Alexey Chita region Authonomous Non-commercial Organization “Zabaikal Center of Ecological and Economic Researches and Programs” Glazyrina Irina Chukotka autonomous district Public Environmental Association “Kaira Club” Litovka Valentina Chuvash Republic (Chuvashia) Public Organization “Human Rights Committee of Chuvash Republic” Ayvenova Nadezhda 283 Dagestan Republic Independent Trade Union of Businessmen and Drivers of Dagestan Yunusov Abdurakhman Evenk autonomous district Krasnoyarsk Regional Public Organization “Public Committee for the Protection of Human Rights” Vedenkov Vladimir Ingush Republic Regional Public Organization “Press Center” Saratova Kheda Irkutsk region Autonomous Nonprofit Organization “Civil Control over the Observance of Human Rights” Stavrov Leonid Ivanovo region Public Political Organization “Ivanovo Regional Society for Human Rights” Valkov Sergey Jewish autonomous area Regional Public Organization “Egida” for the Protection of Human Rights and Civil Liberties in the Jewish Autonomy Rynkova Evgenia Kabardino-Balkarian Republic (KabardinoBalkaria) Republican Public Human Rights Organization “Jurist” Ketov Albert Kaliningrad region Kaliningrad Regional Public Organization “Protection of Human Rights and Freedoms” Dolgopolov Boris Kalmykia-Khalmg Tangch Republic Regional Public Organization “Kalmykya Human Rights Center” Ateev Semen Kaluga region Obninsk Regional Human Rights Group Kotlyar Tatiana Kamchatka region Public Organization “Kamchatka Regional Human Rights Center” Gonchar Viktor KarachaevoCherkessian Republic (KarachaevoCherkessiya) Karachaevo-Cherkessian Regional Public Political Movement “Vozrozhdenie” Panov Vladimir Karelia Republic Karelia Regional Public Organization “ Karelia Union for Children Protection” Palvlova Nadezhda Kemerovo region Interregional Public Independent Human Rights Organization “Legal Society” Pyl Yury Khabarovsk territory All-Russian Public Movement “For Human Rights,” Khabarovsk Regional Branch Bekhtold Alexander Khakassia Republic Khakassia Republican Human Rights and Philantropic Public Fund “Our Right” Ichshenko Alexander Khanty-Mansiisky autonomous district Surgut Branch of the Tyumen Regional Historical-Educational, Human Rights and Charity Society “Memorial” Kuzmina Evgenya Kirov region Kirov Regional Human Rights Center Pimenov Alexander 284 Komi Republic Commission on Human Rights Protection under the Syktyvkar Regional Public Organization “Memorial” Sazhin Igor Komi-Permyatsky autonomous district Komi-Permyatsky Regional Public Organization “Human Rights Center — Pera Bogatyr — Right for Security” Kleshina Larissa Koryak autonomous district Eastern Project- Kamchatka Dobrobaba Elena Kostroma region Kostroma Regional Public Ecological Movement “In the Name of Life” Terekehova Nina Krasnodar territory Regional Public Ogranization “Krasnodar Human Rights Center” Tishinsky Vladimir Krasnoyarsk territory Krasnoyarsk Regional Public Organization “Public Committee for the Protection of Human Rights” Gorelik Alexander Kurgan region Kurgan Regional Public Movement “For Fair Elections” Isakaev Gabdulla Kursk region Inter-Regional Public Organization “Central Chernozyomny Research Center on Human Rights” Ivanov Yaroslav Leningrad region Philanthropic Autonomous Non-Profit Organization “Harold and Selma Light Legal Assistance Center” Massarsky Rudolf Lipetsk region Lipetsk Regional Public Organization “Lipetsk Society for Human Rights” Rodionov Vasily Magadan region Magadan Regional Public Organization “Regional Development Foundation” Zhukov Pavel Marii El Republic Public Organization “Human Rights Center of the Marii El Republic;” Yoshkar-Ola City Public Organization “Man and Law” Paydoverova Nadezhda Mordovia Republic Public Organization “Mordovia Pepublican Human Rights Center” Guslyannikov Vasily Moscow Human Rights Institute Petrova Elena Moscow region Moscow Helsinki Group Belenkina Nina Murmansk region Kolsk Association of Women Lawyers Paikacheva Irina Nenetsky autonomous district Non-profit organization “‘Minlei Foundation” Toskunina Tamara Nizhnii Novgorod region Regional Public Organization “Nizhny Novgorod Human Rights Society Tagankina Nina 285 North Osetia Republic Vladikavkaz Center of Social and Humanitarian Research of the Vladikavkaz Press Club” Pliev Alan Novgorod region Novgorod Regional Public Organization “Regional Human Rights Center” Davydovskaya Nella Novosibirsk region Novosibirsk City Public Organization “Center for Human Rights Achtivity and Legal Information” Savchenko Yakov Omsk region Center for Legal Protection Yatsenko Natalia Orenburg region Orenburg Human Rights Organization “Your Rights” Kochkin Valery Oryol region Institute of Public Problems “United Europe,” Public Charity Institution of Oryol Region Katkova Veronika Penza region Penza Regional Branch of All-Russian Public Movement “For Human Rights” Bychkov Valery Perm region Interregional Human Rights Organization “Ural Center for NGOs’ Support” Viyuzhanin Vasily Primorsky territory Legal Information Center of Aircraft Branch Workers Kosilov Kirill Pskov region Pskov Regional Public Movement “Veche” Donovskaya Nadezhda Rostov region Rostov Regional Public Organization “Christians Against Torture and Child Slavery” Velikoredchanin Stanislav Ryazan region All-Russian Public Historical, Educational Philanthropic and Human Rights Society “Memorial,” Ryazan Branch Ivanova Sofia Sakha Republic (Yakutia) Siberia Consulting Center of Humanitarian Education and Socio-Political Research Sergeeva Irina Sakhalin region Public Organization “Public Human Rights Center of the Sakhalin Region” Kuperman Mark Samara region “SOFIT,” Samara Public Fund of Innovative Technologies in Education Chernova Tatiana Saratov region Regional Public Organization of Chernobyl Invalids “Saratov” Human Rights Center “Solidarity” Nikitin Alexander Smolensk region Smolensk Charity Foundation “Dobroserdie” Bakhmetova Tatiana St. Peterburg and Leningrad region Public Humanitarian and Political Center “Strategy” Arakelyan Antuan Stavropol territory Public Non-Commercial Organization “Stavropol Regional Human Rights Center” Seminenko Alexander 286 Sverdlovsk region Public Union “Sutyazhnik” Belyaev Sergey Taimyr (DolganoNenetsky) autonomous district Taimyr Human Rights Center Varnakov Arthur Tambov region Tambov Public Organization “Union of Young Lawyers” Konovalov Dmitry Tatarstan Republic Association of Human Rights Organizations of the Tatarstan Republic Public Organization “Human Rights Center of the Kazan City” Manasipov Farit Tomsk region Regional Public Organization “Tomsk Research Center on Human Rights” Kandyba Nikolai Tula region Tula Public Organization “Tula Human Rights Center” Kurenkov Viktor Tver region Tver Regional Branch of the “Memorial” Society Sharipova Valentina Tyumen region All-Russian Public Movement “For Human Rights” Tyumen Regional Branch Postnikov Vadim Tyva Republic Tyva Republican Public Human Rights Movement Perelyaeva Avgusta Udmurt Republic Local Public Organization “Initiative” Kokorin Alexander Ulyanovsk region All-Russian Public Historical and Educational Philanthropic and Human Rights Society “Memorial,” Ulyanovsk Branch” Bakhanova Elena Ust-Ordynsky Buryatsky autonomous district Charity Foundation “Hope” Kamyshev Vitaly Vladimir region Regional Public Human Rights Organization “Vladimir Center for Aid and Protection” Dulov Maxim Volgograd region The Lower Volga Region Human Rights Organization “Civil Society and Ecological Safety” Naumov Stanislav Vologda region Vologda Regional Human Rights Public Organization “Freedom” Lyndrik Vladimir Voronezh region Inter-regional Human Rights Group Gnezdilova Olga Yamalo-Nenetsky autonomous district Yamalo-Nenetsky Regional Human Rights Center Berzina Lyudmilla Yaroslavl region Yaroslavl Regional Public Institution “Human Rights Center” Storozhev Valery 287 MOSCOW HELSINKI GROUP HUMAN RIGHTS IN RUSSIAN REGIONS