Ernest M. Ametistov
LL. D.
Honoured Scientist of the
Russian Federation
Justice,
Constitutional Court of
the Russian Federation.
Human rights in present-day Russia:
Between the past and future
My country, which is now slowly and agonizingly ridding of its totslitarian past, is undergoing a hard transitional period. This is a unique time of breaking down formerly acceptable stereotypes and setting new moral, political, legal and cultural standarts.
Everything is in motion in Russia at the moment? and everything is ambivalent. Russian realities can't be measured by absolute yardsticks saying that either everything is good or everything is bad. Any area of life, from political rivalry in the Parliament to elderly peasant's life in an outlandish Russiaan village can't be depicted in only black and white. Everything is multi-coloured, vague and is changing very fast.
It is equally hard to give an unequivocal assessment of the current situation in present-day Russia in the area of human rights and freedoms, their place in the system of Russian scale of values, extent of their infringement, their existing remedies and their effectiveness. However, one can compare this situation with that of the past and see the development trends leading to the future.
In any case in order to give a well-balanced and in-depth evaluation of contemporary Russia one should take into account the historical, psychological and cultural peculiarities of this country and its peoples.
In Russian's thousand-year history the individual has never possessed self-dignity, and in the dilemma "state or individual" priority has always given to the state without any reservations. It was not until the 60s of the last century that the situation started changing gradually, which was a period of the social reforms launched by the tsar Alexander the Second, who gave fredom to Russian surfs. However all the democratic institutions concieved then - political parties, parliament, freedom of the press, trial by jury etc. were ruthlessly smashed by the communist dictatorship. For 73 years Russia was ruled by one of the most cruel contemporary totalitarian regimes that did not only killed tens of millions of innocent people but also distroyed morality and phylosophy of its subjects, and the idea of the individual's supermacy over the state was wiped out altogether. This idea was brought back to life by Soviet dissenters when the Communist dictatorship was dying, in its last decades. But the overwhelming majority of the population was brought up the stricly paternalistic principles and sincerely believed that the source of all social wellbeing is the state only, and its citizens owe everything to it including their lives. This paternalistic psychology manifisted itself in s parasitic dependent attitude to the state that is expected to hand out to be asked for and be claimed from instead of building their lives with their own hands. Thus by the end of communist regime the level of public awareness of the individual's rights and freedoms, as well as the level of the people's legal education was extremely low.
One of the ugly features of such public thinking was a rather peculiar attitude to the law and law-enforcement institutions. As the Soviet people learned the hard way the fact that the Constitution and many other law exist only on paper disrespect for the formal law becam traditional, and on the contrary fear of the informal though real, law id est the communist party's unlimited powers gained the ground. That is why the people didn't seek to protect their interests in a court of law, which remained punitive, not remedial, but in the communist party institutions. Thus in the last years of the communist party regime the Central committee of the KPSU received 8 - 10 million complains from citizens annually, which was impossible for them to tackle if even they would have intentions to do so. Nevertheless the deeply-rooted tradition "to write" id est to complain to the higher executive and legislative bodies instead of resorting to a court of law or any other remedial institutions still persists.
But the Soviet people were absolutely right when they didn't trust Soviet laws and courts. For decades courts, prosecutor's offices, militiar, let alone the national security bodies were instruments of the party and state's arbitrary rule, which had nothing to do with the protection of the citizen's rights and freedoms. For decades generation of prosecutors, attorneys and judges were brought up on disregard for independence of courts, with superior justice, in their view, being the most recent instructions by party officials, not the Constitution and laws. That was what the custodians of the law were like at the end of the communist era.
The totalitarian legacy of a new democratic Russia also incorporated surpressed, "postoned" till some later date, economic, social and ethnic problems and conflicts that cropped up one after another in the last years of the Soviet era and became particularly sharp as the democratic reforms were introduced. The Soviet economy which was in a complete shambles in early 90-s and could put the country on the verge of famine had to be exposed to drastic economic reforms by Russia's new democratic government which led to dramatic impoverisation of millions of people along with saturation of domestic market with foodstuffs and consumer goods. The struggle of the people surpressed by the the totalitarian regimes for their independence met with the resistance of the former communist party autocracy as well as the new democratic authorities resulting in bloody events in Karabakh, the Baltic republics and finally in the bloodbath in Chechnya. The last example is particularly characteristic. No doubt the Chechnya conflict can be traced back to the colonization of the Caucasus by the tsarist government in the XIXth century, and especially the deportation of the Chechens by the Stalin regim in 1944 to Siberia and Kazakhstan whose stepps became graveyards for many of those people. Such sufferings can't be wiped off the nation's memory, they remain, literally speaking, on the genetic level.
So, the proverb "the dead grabs the alive" its quite applicable to the situation in the Russia.
Another reason for such a deplorable state of human rights in Russia is the choice of the politics the new democratic government is pursuing. After their victory over the communist regime in 1991 they failed to replace all the civil service personnel which is normally the practice of the revolutionary period. Their explanation was based on the fact that Russia was sick and tried of revolutions and that the total purges of the government bodies and prosecution of the communist party members in this Russian context were fraught with social outburst and a civil war. Perhaps the democrats were right. But as a result of a such "humane" approach replacements took place only the highest level of the pyramid. Medium-level and lower-level functionaries of the communist regime remained in their posts. Later on some of them were incorporated into the new democratic arrangements but the majority preserved their blind hatred towards democratic reforms and continued to sabotage these reforms in the files of the communist and nationalist opposition.
In contrast to post-war Germany there was neither punishment not repentance in Russia. No former KGB butcher guilty of mass killings and persecutions of millions of Soviet people was convicted and punished. All those involved in the August putch of 1991 and the communist fascist mutiny in October 1993 were given free pardon. The attempt to ban the Communist party in the Constitutional Court in 1992 ended in a compromise that confirmed dissolution of the executive bodies of this party, prohibited their restoration, but legalized local grass-roots party organizations set up on the territorial principle, i. e. not on the premises of enterprises and offices. But even this compromise was not complied with and soon the communist party was completely restored to form the core of anti-reform opposition and to pose a major threat to freedom and democracy in Russia. Until recently - actually until the most recent presidential election there was no even elementary anticommunist phylosophy. Meanwhile the communist symbols in the form of numerous monument to Lenin and other relics of the Soviet period remain in every city of the country.
Those were the conditions in which the newly-born Russian democracy was launching its large-scale political and legal reforms. The top period of these reforms may be summed up as follows: the build a society based on justice and civil rights where an individual will become an equal partner of the authorities, whose main aim is to protect rights, freedoms and interests of the individual and citizen instead of the monster-state based on supermacy of power, arbitrary rule and surpression of the individual.
These aims were to be reached through the democratic constitution and legislative setting forth the principle of separation of powers, observance and protection of the individual's rights and freedoms as well as principles of federalism (which is especially important for Russia's diverse national and regional conditions); through independent and effective court system and other law-enforcement bodies; multy-party political system in the form of parliamentary institutions and self-government on all levels of legislative power; the freedoms of the press and free elections; a liberalized economy based on private ownership and free enterprise.
From the very start the implenmentation of the democratic reforms took the reform of extreme political hostility between their proponents grouped in executive bodies and opponents who seized the leading posts in the legislative bodies.
The main results of this hostility are as follows. At the end of 1993, after suppression of the communist-fascist mutiny, the new Constitution of the Russian Federation was adopted by the nation-wide referendum. This Constitution is based on three major principles - separation and independence of legislative, executiv and judicial powers; observance and respect of the individual's rights and freedoms; and separation of the competence between the Federation and its entities with granting them wide independence. According to many Russian and foreigh analysts this Constitution is one of the most democratic in the world and its provisions relating to the individual's rights and freedoms meet the world's highest standarts in this area.
Its advantage is that most of its articles can be applied. And law-enforcement bodies - courts, government administration - as well as individuals - already beginning to do invoking directly the Constitution in their decisions, orders and lawsuits. Thus, for the first time in Russia's history the Fundamental law of the country is no longer a set if empty rhetorical statements and slogans but is getting really applicable. Moreover the Constitution recognized universally-applied principles and rules of the international law as a constituent part of the legal system of the Russian Federation and gave priority to international treaties over domestic laws. As a result, these principles and rules - in the first place those relating to the individual's rights - are finding their way into the courtroom and other law-enforcement institutions which, no doubt, takes Russia up to the level of most civilized countries.
Over the last few years there have been passed a number of important laws governing and protecting the individual's rights in various areas of law. Among them are: a wonderful Civil Code referred in Russia as the Constitution of market economy: a new Criminal Code, legalizing a lot of kinds of businesses that used to be regarded as illegal in the Soviet times and redusing the death penalty from 27 Corpus delicti to one (premeditated murder with aggravating circumstances). Moreover, the death penalty is getting less and less applicable and the moratorium on its application is currently under consideration.
The Laws on the Constitutional Court and the Status of the judges recently passed set forth legal guarantees of actual independence and high status of the judges in Russia; the Law on the trial by juri enables to restore this institution in Russia after being abolished for more than 70 years; the Law on the authorized official on the individual's rights (ombudsman), introduces this law-enforcement institution into Russian legal system for the first time; laws on trade-unions and other public associations allows individuals to form professional organizations, political parties and movements; the Law on the order of arriving in and leaving the Russian Federation allows millions of Russians citizens to freely leave the country and return to it; the Law on press and information guarantees the freedom of speech in all mass media; a number of other laws have been passed recently as well.
No all of them are perfect. Many of them have the traces of political strife over the issue of rights and freedoms in the Russian Parliament where the majority composed of communist and national opposition is doing their best to hamper and block the reforms. The consequenses of this rivalry are particularly noticeable in the area of regulating the freedom of economic activities, where the laws are most contradictory and inconsistent. For example, the State Duma is still blocking the decision on exercising the constitutional right to private ownership of land which in its turn is a serious stumbling block to the implementation of the reforms. As a result, the President of the Russian Federation has to regulate dealings in land (under the Russian Constitution the President may fill in the gaps in the legislation by issuing decrees before any relevant law is passed).
On the basis of the Constituton and the recently passed laws a civilized system of legal protection of citizens' rights and freedoms is forming, though it is the slow and painful process. The Constitutional Court of the Russian Federation plays a very important role in this process. It is a comletely new institution in Russia established in 1991 in the frame work of the restructuring of legal, juridical system in particular, which was designed and initiated by democratic deputies of the first Russian parliament. The Constitutional Court exercises wide powers that are enable it to pass verdicts on constitutionality and nonconstitutionality of laws and other acts not only on requests of state bodies but on citizens' complaints as well. For its 5-year existence the Constitutional Court has heard more than 50 cases most of which were linked with protected of human rights and freedoms. In particular the Court has exercising a kind of "sanitary" function eradicating the Russian legislation of its totalitarian heritage. In addition, it rectified violations of the Constitution committed in the new democratic legislation. The unquestionable contribution of the Constitutional Court was the fact that it was the Court that encouraged the courts of common jurisdiction to directly apply the rules and regulations of the Constitution which means a revolution for the Russian legal system.
Common law courts are also beginning to be aware of their potential to administer genuinely independent and impartial justice. Typical of former Soviet courts were prosecution-oriented procceding, inquisitorial in reality when the courts actually sealed the verdicts passed by the party nomenclature. Now this practice is being replaced by a genuinely contesting process where prosecution and defense enjoy the same rights. Many regions of the country conduct trials by jury quite successfully and this expirement is most likely to become common practice. Legal proccedings are based on presumption of innocence and habeas corpus procedure which just a few years ago was regarded by Russian lawyers as a wishful dream.
The very structure of civil lawsuits has dramatically changed. New categories of cases, formerly unactionable, have appeared among them: cases about protection of honor and dignity, about protection of consumer rights, about illegal acts of the authorities. Annually, courts hear tens of thousands of citizens' suits against governmental offices and civil servants. Among them there were a few suits brought and won by individuals against the President of the Russian Federation.
As a result, the public attitude towards courts of law is changing. According to the opinion polls conducted and published by the Russian lawyer Inga Michailovskaya ("Constitutional Rights in the Russia Public Opinion" - "East European Constitutional Review", Vol. 4, # 1, Winter 1995), the right to judicial defense is regarded as the most important among constitutional rights and freedoms - 95,8% of interviewees opted for it.
Meanwhile, there are still judges who are far from being happy about their independence and are opposed to the current democratic reforms. The such number of people is greater in public prosecutor's department, militia, national security bodies where many key posts are still retained by the officers who under communist regime were constistently persecuting dissidents. That is why criminal cases against fascist and communist organizations involved in propaganda of national and social hatred leading to violence and pogroms are extremely rare. But when members of an antifascist youth organization were wipping their feet of fascist and Soviet red flags the public prosecutor's department didn't hesistate to file a criminal suit against them!
In spite of all the progress in promoting legal protection of citizens there are still numerous violations of the individual's rights and freedoms in present-day Russia. And although many of these violations are rooted, as i have already said, in the totalitarian past, the current authorities must also to a greater extent be held responsible for it. The President of the Russian Federation admitted in public that bringing in troops to Chechnya which led to suffering and deaths of tens of thousands of people was the government's mistake. Repeated delays in payung wages and salaries to millions of workers and employees are the result of short-sighted economic policies of the federal government and at the same time in many cases of deliberate excesses and sabotage of local authorities. The appaling conditions in Russian prisons is legacy of the communist past but it was not until recently that the democratic authorities started to make some efforts to improve the life of convicts. The bullying of consripts in the Russian army has been a problem for years, but high-ranking generals don't seem to do anything to stop this disgraceful practice shutting off the reforms conducting in the country.
That is what the Russian contradictory reality is like today. We can't say that the unconditional observance of human rights is an effective evereday practice and rule in our country. We are far from attaining this goal but we have opted for this path and we are not going to turn off. It is proved by the fact that in splite of all our difficulties and problems Russia is one of the most free countries now. Tree basic principles underlying every democracy are ensured: a multi-party system, the freedom of speach and information and free elections. These fundamental democratic principles manifested themselves in the course of the recent presidential election. Whoever might tell you anything about them here, it was the first time in Russia's long history that the leading politicians of the country appealed to the people of Russia to support them and they were dependent in their option. This option was really free and fully conscious. The Russian people are aware of the fact that if comunists come to power it will mean a catastrophe not only for our country but also for the whole world. And the Russian people have made thier choice - they have opted for freedom. That is why I remain an optimist and believe in the better future for my country.
