COMPLIANCE OF INTERNAL LAWS, ADMINISTRATIVE RULES, PRACTICE AND POLICY OF THE USSR WITH ITS COMMITMENTS ON THE INTERNATIONAL LAW AND ON THE CONFERENCE FOR SECURITY AND COOPERATION IN EUROPE (CSCE)
Ernest Ametistov
Doctor of Law Science
1. In compliance with Vienna Final Document of the CSCE, the Soviet Union committed itself to "improve its laws, administrative rules and practice in the field of civil, political, economic, social, cultural and other human rights and fundamental freedoms and use them in practice to guarantee the effective realization of these rights and freedoms". The Copengagen Conference document of the CSCE binds the USSR to provide for "the compliance of its laws, administrative rules, practice and policy with its committment on the International Law and for their harmonizing with the Clauses of the Declaration of Principles and other committments of the CSCE".
The above statements suggest the necessity of the comparison of the Soviet legislation on human rights not only with the CSCE papers but also with other international documents in which the Soviet Union participates, as well as the necessity of the estimation of the development of this legislation in general, even regardless of the international committments.
2. Taking into consideration other, more concrete issues which are studied at these session (liberty of consience, guarantees against arbitrary arrest, psychiatrical practice which violates human rights, the right to life, freedom of migration, minorities' rights and other - see Session'Program), only several, most serious incongruities between the Soviet legislation and international committments are analyzed in the paper which does not exclude a certain inevitable duplication of other reports. Furthermore, the common meansures aimed at the improvement of the effectiveness of the process of implementation of the international norms, concerning all the branches of the legislation are suggested.
3. During the past three years the Soviet legislation on human rights underwent substantial changes. Only at the Union level more than 40 acts, fully or partially, directly or indirectly, dedicated to the regulation of the citizen rights, freedoms and duties were adopted. As a result, some rights and freedoms which had not previously been included in the Soviet legislation were proclaimed and regulated, for instance, the right to the inherited life landowing and the right to the temporal use of the leased land, the right to property of individual and family enterprise, the right to enterprise, the right to strikes, the right to foundation of mass media, the right to the establishment of political parties and mass movements, the right to defender's acces to investigation from the moment of bringing the accusation and in case of arrest of the suspect or taking him to the custody, if the protocol of arrest or the enactment of taking into custody is produced, the right to enter the USSR and exit the USSR and some other.
The rights and freedoms which already exist in the Constitution, for example, the freedom of meetings, street processions and demonstrations, freedom of speech and the press, liberty of conscience and other were developed and supplied with the mechanism of realization.
The most odious antidemocratic clauses whish restricted rights and freedoms and were used as the means of political repressions, such as Art. 190 (1) and Art. 70 of the Criminal Code of the RSFSR and similar Articles of the Criminal Code of other republics were ousted from the present legislation which eliminated the concept of corpus delicti of antisoviet agitation and propaganda from the Criminal Law, the changes in Article 6 of the Constitution of the USSR, from which the clause about the CPSU as the leading and guiding force of the Soviet society which allowed the legislative foundations for transition to the multiparty system; the interdiction on the court defence for certain categories of workers was almost entirely eliminated.
In compliance with the committments of Vienna document, the Soviet Union ratificated the Additional protocol to the International Pact on civil and political rights and joined the other international control mechanism of defence of human rights. The general estimation of the situation in compliance with the above statements allows to draw the following conclusion: at present, the most scandalos violations of human rights and freedoms of the citizens of the USSR are transferred from the legislation sphere into practical sphere which is confirmed by the examples given in other papers submitted for these Sessions.
However, also in the legislative field alongside with progressive development for the same years the tendencies for preserving the previous restrictionsand even the introduction of the new clauses violating not only the constitutional norms but international rights in the USSR, as well, were discovered and continue to appear.
To our opinion, at present, the most dangerous and gross violations take place in the sphere of civil (personal) rights and freedoms.
Here are the examples.
In Art. 6, item 1. of Human and political rights Pact it is stated that "the right to life is an integral right of every human being". This right is guarded by law. Nobody can be arbitrarily deprived of life".
The above right is in serious danger in connection with the adoption of laws about Soviet militia and about KGB. The corresponding clauses of both acts regulate the use of weapone. Among the justified grounds of such use (defence of citizens from assault, parry of group or armed attack, which threatens the lives of militia and KGB-men and other), it is allowed to use weapon to arrest a person who is "escaping from custody", in this case even without warning. Thus, the legal basis for the most favorite way of violence of the disagreebles - "During the attempt to escape"
In compliance with Art. 17 of the Civil and political rights Pact "nobody can undegro arbitrary and illegal interference into his private or family life, arbitrary or illegal infringement on the inviolability of the home and privacy of his correspondence, arbitrary or illegal infringement on his honour and reputation". In this case, "every person has the right to legal defence from such interference or such infringements".
The attempt of violation of this right was made in 1988 when the decree of the PVS of the USSR about duties and rights of internal forces allowed the service men of these forces to enter the residential and office department in cases of "chasing the criminals". Such a wording allowed to enter the houses not only in cases of direct chaising which is admitted by many countries laws and by the international law but at any time and without showing arrest or search writ.
As a result of the public sharp criticism, this wording was changed in the Law obligations and rights of internal forces dated 1990 in which they were granted the right to enter the residential department only for the "direct suppression of the crimes against life and health of the citizens".
Despite this precedent, in the Union Law the soviet militia, the previous wording was used, without indication of the necessity of direct suppression or chasing of the criminal: "with a view to suppress the crimes, prosecution of the suspect.. to enter freely at any time of the day the residential and other places which belong to the citizens..." (Art. 12, item 18). The Russian Decree of Militia did not avoid the same temptation having used the similar wording. In the Decree of the organs of state security (Art. 14, item 9) it is also stated that the KGB men can enter the citizen's houses when "chaising the persons under suspicion of committment of crimes". All this creates the serious danger pretence of search and chaising the suspects "not hot on the scent"but at any time.
The right to the legal defence of the privacy of correspondence and telephone talks. Art. 14 of the Law states: "The organs of state security to fulfill the reposed duties: ... 3) exercise with the posterior notification of the prosecutor solely in order to supress the undermining reconnaissance activities of special services of foreigh states and foreifg organisations against the USSR and the republics the control of certain person's mail correspondence and overhearing of his telephone talks which is done by using telephones and other telephone devices and also, get the information through other communication channels used by these persons if there are sufficient information proving the committment or preparation of the crimes the investigation of which is legally referred to the state security organs competency, in case there are grounds to think that as the result of these measures, the information which can be regarded as the evidence in the criminal case will be received". This clause of the Law of KGB (state security organs) violates not only the international norm but also the Soviet Law. The Fundamentals of the legal procedure of the USSR and Union republics in Art. 35 (1) which was alterned and supplemented with the Decree of the Supreme Soviet of the RSFSR dated June 12, 1990 clearly determine that overhearing of telephone talks and perlustration of correspondence are possible only in case the criminal case is brought and sanctioned by the prosecutor or by the court decision and can be continued not longer than a certain period (six month). Having admitted the adoption of the above mentioned norm of the Law of OGB (state security organs), the Supreme Soviet paved the way for limitless tyranny of the KGB as related to the citizen rights and freedoms.
The citizen rights are continued to be violated also in the sphere of the freedom of migration and choice of place of residence. Art. 12 (item 1) of the Civil and political rights Pact states: "Everybody who lives legally on any state territory within this territory has the right to free movement and the freedom of the choice of place of residence".
However, the police institution of registration is still in full effect. Though during the period after Vienne meeting the government of the USSR abolished the number of the items of the closed part of the Clause on the Passport which most fragrantly violated the right to work, education, joint residence of husband and wife and other. However, it was also done by private decrees. For instance, it is impossible to find in the Collection of Decrees of the USSR Government the Decree of the Council of Ministers of the USSR #907 dated September 8, 1990 which allowed the persons who served their sentences according to a number of Articles of the Criminal Code the registration in Moscow and other large cities. It is done despite the clear committment of the Final document of Vienna Meeting according to which all the normative statement on the freedom of choice of place of residence during a year afret the end of the Meeting should be published.
One of the most important and universally recognized in the world judicial guarantees of the sitizens defence from arbitrary arrest is persistenly not introduced into the Soviet legislation. This guarantee is formulated in Copenhgagen Conference document in the following way: "Every arrested or detained person has the right... to be urgently delivered to the judge or to other officials, so that the decision about the legality of his arrest or detainment could be made". However, in the Draft Fundamentals of the Criminal Juridical procedure legislation which already passed the first reading in the Supreme Soviet of the USSR, there is a possibility for the arrested, suspect or his representative to complain to the judge if such a complaint was rejected by the prosecutor. But even this modest element of the "heabes corpus" procedure is under the threat because even here there is onother variant: "Art. 35 (which contains this clause) should be excluded". And it is this variant that may be supported by the deputies.
The violations of some political rights and freedoms continue. The Copenhgagen document suggests that the state participant chould admit that "all the mandates at least in one Chamber of the national legislative organ will be the object of free controversy of the candidates during people elections".
However, till nowadays, the Law Elections to the Congress of People deputies of the USSR which allows to nominate one third of the deputies from public organizations is still in power which excludes the free controversy of all the candidates.
Art. 21 of the Pact of civil and political rights acknowledges the right to peaceful meetings. This right was however grossly violated by the known Decree of the President of the USSR "About regulation of conducting of mass measures on the territory of Moscow within Sadovoye kol'tso" dated April 20, 1990 resulting in wrecking of the important mass demonstration on March 28, 1990 within Bulvar koltso under the threat of using the armed forces and militia. And though the operation of this Decree was cancelled by the Committe of State Supervision, there are no effective guarantees against repetition of such activities of the presidential power.
The violations of international committments in the sphere of social-economic rights and freedom of associations and the right to organisation" and Art. 22 of the Pact of the civil and political rights recognizes everybody's right to the freedom of association including the right to the establishment of trade unions, without preliminary permission. However, the Law of public societies suggest their obligatory registration in the state organs as the necessary condition of the organizations functioning which is in fact the preliminary permission. The Law also puts forward a number of other demands to the founders of the public societies including those which concern the contents of their Decrees which also contradicts the notms of Convention #87. In Art. 8 of the Pact of economic, social and cultural rights, the right to strikes is proclaimed. This right for the first time was introduced into the Soviet legislation by the Decree of the order of settlement of the group labour conflicts in 1989. After the workers began to use the strikes actively for defence of not only economic but also political rights, the authorities tried to limit it in legal form. Thus, the leadership of Karaganda coal basin this spring demanded through the court the abolition of the miners strike because they put forward not only economic but also political demands. However, Karaganda city court rejected the suit because the Decree of group labour conflicts can be applied only to the strikes on economic motives and cannot be used in this situation. At hte same time the court pointed out that the strike on political motives cannot be banned because of lack of norms abolishing the political strikes in the Soviet legislation.
This "blank" in the Soviet legislation was operatively filled by the Supreme Soviet of the USSR which in the new modification of the Law of the order of settlement of group labour conflicts which was adopted this May directly banned political strikes.
It seems that there is no direct violation of the international committment because Art. 8 of the Pact gives the right to strikes if it is done in compliance with the country Laws. But there was obvious contraction of the right which had been actually realized by the citizens according to the principle "what is not banned by law, is permitted". However, the same Pact of economic, social and cultural rights says that "no restriction of depreciation of any of the basic human rights... can be allowed under the pretence that in the given Pact such rights are not recognized or they are recognized to a lesser extent. (Art. 5, item 2). The essence of this stipulation is that this Pact should not be referred to with a view to extend the rights and freedoms or to limit them. The duty of the international community's states participants is in constant development of human rights and all attempts upon the already existing rights and freedoms do not correspond with the spirit of Helsinki process.
Beside the above mentioned and other obvious violations of rights and freedoms of the citizens, in the Soviet legislation the certain tendencies of conceptual character which create the potential possibility for the violation of the rights and freedoms by the state are discovered.
One of them is the concept of preliminary permission which was mentioned above in connection with the Law of public societies. It can also traced in the Decree of the Order of conducting the strikes, meetings and street processions, in the Decree of Press and other mass media, in the Decree of Freedom of conscience and religious organizations.
All the above acts commit the citizens who want to realize the corresponding rights and freedoms, to ask the permission for their realization the corresponding state bodies beforehand. And thoung this permission is presented in the form of preliminary registration, it does not change the essence of the matter. The following situation is built up: firstly, the citizens ask the state to permit them to use the rights and freedoms which are already granted to them by the Consitution; secondly, in ease of rejection these rights and freedom realization and turning to legal defence, the citizens get into less advantageous position than the state - they perform as plainiffs which puts the heavy burden of proving the fact of violation of their rights on them.
However, in the international laws (including the International Pact of civil and political rights), the Convention of MOT #87 of freedom of associations ratified by the USSR) and in the legislation and practice of many states, the other - much more progressive concept of preliminary information or the normative order of using the right without the preliminary permission is used. It is essence in the fact that the citizens intending to realize their constitutional rights (for example, the right to demonstrations, establishment of a public organization etc.) must only inform the corresponding state organs in the established form and in the established terms. If during this period there are no objection from the state the citizen freely realize their right. If there are legal grounds to hinder the realization of this right the state organs bring the legal suit to ban the use of this right. And in this case, which is very essential, the burden of proving is laid not on the citizen but on the state.
This concept, however, is not reflected in the Union law of human rights.
The other typical tendency of this legislation is the persistent reluctance to include into the law the juridicial mechanisms of its fulfillment. The creation and functioning of such mechanisms is systematically deligated to the executive organs which as the practice shows in their normative acts often try to limit and mispresent the citizen rights established by law. Here is an example from the newest legislation. In the Decree of the order of departure from and arrival in the USSR many practical issues are regulated in detail: the document necessary for the crossing the frontier, grounds for giving the passports for travelling abroad, grounds for rejection, contents of application and petition for passport for travelling abroad and many other things.
And yet, the authors of the Law could not help to include the following reference norm into it: "the rules of official registration and issue of foreign passports for the departure from the USSR are stated by the present Law and the corresponding Acts of the Council of Ministers of the USSR subject to publication" (Art. 4). Why not elaborate these rules in the Law itself if necessary at all? The Law is elaborated in such detail that can have the direct effect. The reference to the executive power can be explained in this case by one reason only - the wish to provide for the possibility of additional restrictions of the practical realization of the rights granted by law.
Another typical mode of the Union law making on human rights is deliberate leaving of blanks and rubber norms which can be broadely defined. Thus, in the Decree of the Press and other mass media first the concrete grounds of the responcibility for breaking the law of the press are stated and then it is said: "The Law of the USSR and the Union republics can set the responsibility also for other violations of the press and other mass media law" (Art. 35).
In the Law of public societies (Art. 3) the full list of public societies, the establishment of which is not allowed by the given law. The law also sets the grounds for the responsibility for breaking the law of public societies (Art. 21). Nevertheless, in Article 10, after the statement of the Status contents, it is said that "the status of a public society must not contradict the law". In both acts there is an obvious legislator wish to leave the additional means for limitation of the granted rights - either by way of adopting the new law in the future (in the Law of the press) or through the reference to quite indefinite "legislation" (in the Law of societies).
And at last, one more common problem concerning the implementation of international committments in the international legislation of the USSR in that in the Soviet legal system there is no united approach to the correlation of international and internal laws. One of the legislative acts contains special norms about the priority of international treaty before the internal law which enables to apply the international law norms in case of their collision with internal law. Other acts do not contain them and entire branches of the law - labour, criminal, criminal-juridical and a number of others - remain as if outside the sphere of the international law influence. For strict fulfillment of international obligations, it is necessary to establish the effective legal mechanism of such a fulfillment. For this purpose, the norm of the priority of international agreements should be made universal covering all the branches of law and to do this, it is necessary to adopt it at the Constitution level. Furthermore, it is insistenly required to adopt the new Law of the order for conclusion, fulfillment and denoucement of international agreements of precise and timely fulfillment of international norms in the internal law.
