Ernest Ametistov
LL. D., Judge of the
Constitutional Court of the
Russian Federation
Freedom in Russia: guarantees of implentation
In the last annual report of an independent research centre "Freedom House" (USA) Russia was mentioned among 75 free countries of the world. At the same time authors of the report refused to define it as a fully democratic country. I regard this contradiction between freedom and democracy as really dialectical and actual one. I suppose it is not only specific Russian but universal contradiction especially typical for post-totalitarian political regimes, the contradiction which reflects the problem of human rights and guarantees of their implementation. And I'm sure that this contradiction is and will be the most dramatic for all international human rights community in the end of 20th and at the dawn of 21st century.
Indeed during last seven years Russia turned out to be from one of the most severe dictatorships of the world into the country with practically unlimited political pluralism, freedom of expression and information, freedom of conscience and religion, right to freely leave and reenter the country, and some other fundamental human rights and freedoms. The experience of democratic states as well as the International Law standards influenced on the development in Russia. The Constitution of the Russian Federation declares that the society and the state secures human rights and freedoms as a superior value, that rights and freedoms of the individual are inherent from birth, that universally accepted human rights norms have precedence over the laws of the Russian Federation and directly give rise to rights and obligations of citizens in the Russian Federation. The Constitution also provides that, in accordance with treaties to which the Russian Federation is party, individuals may seek protection of their rights in intergovernmental bodies, if they have exhausted all domestic remedies.
Now the rights and freedoms of Russian citizens are protected by such legal means and ways which never existed before in Russia. For example till last years advocates had no access to criminal investigations until they were completed and when the most important part of the criminal process was finished. Now advocates have right to meet with their clients from the moment of detention or arrest that allows them far greater opportunities to provide effective councel.
The real right to habeas corpus began to act in Russia during last year. In accordance with the amendments to the Code of Criminal Procedure a person being held in custody could petition the court to protest custody or its extention. When a prisoner makes a petition to those holding him or her in custody, the authorities are obliged to give the petition to the regional district court within 24 hours, along with their justifications for custody. Having received a habeas corpus petition, the judge must hold a hearing within 72 hours. The hearing is closed, but the accused, defence councel, and procurator may attend. The judge must decide to release the detainee or to dismiss the petition; in an case the judge releases the accused from detention, the judge may impose any other legal meansure to ensure the appearance of the defendant. If the accused is ordered to be released by the judge, he or she is released immediately. If the detainee's petition to be released is not granted, the detainee's petition to be released is not granted, the detainee may petition the court again after some time.
Some important steps have been taken to improve the judicial system. The Constitution provided the introduction of jury and in 1993 the first jury trials will begin to act in about ten regions of Russia. At the same time recent amendments to the law on judicial administration permit judges to hear alone, without the participation of lay assessors many cases of relatively minor importance and where potential sentences are not great. The new Law on the Status of judges in the Russian Federation has been passed on June 26, 1992. The law encreased the power and independence of judiciary. To further judicial independence, judges under the new law are to be elected to life tenure.
The Law requires that judges may not be members of any political party, nor may they earn outside income except from academic pursuits. The Law affords judges special state security protection and provides that judges' salaries may not be diminished during office.
The Law mandates that judicial rulings and orders are binding and that those who are found to be in contempt of court, will be held accountable.
At last absolutely unprecedented is the creation of the Constitutional Court of the Russian Federation in accordance with the Law on July 12, 1991. In October 1991 thirteen judges were sworn into office. The first body of judicial constitutional supervision in the history of Russia has come into existence.
The creation of the Constitutional Court actually means the appearence of the third - judicial power, together with legislative and executive bodies, in the system of powers of contemporary Russia in full compliance with the classical theory of separation of powers. It establishes a critical mechanism to protect the rule of law and the Constitutional rights of citizens. Under old Soviet Law, Constitutional rights were unenforceable because no court was empowered to apply the norms of the Constitution directly and to determine the constitutionality of the laws and state actions. Therefore the establishment of the Constitutional Court marks a fundamental break from the Soviet legal past and draws on the comparative legal experience of other European legal systems.
For 15 months of its existence the Constitutional Court demonstrated its ability to be not only the protector of human rights and the Constitutional system but also the guarantor of the civil peace and security in the state when the Court played the role of a mediator between the legislative and executive powers during the political crisis in the Congress of People Deputies last December.
Shortly speaking Russia never been si free as now and its citizens never enjoyed by such rights and freedoms as at the present days.
At the same time this freedom and these human rights are very vague and unsteady and the danger of their suppression, the risk of restoration of the totalitarian systeme is real and serious inspite of all juridical guarantees, I told about, including the Constitutional Court. The main reason of this menace is the situation in the economic and political spheres of the country. The history of many countries, including my own, shows that unfortunately not juridical but economic and political situation plays really decisive role in the field of human rights. In this connection I shall describe shortly this situation in my country.
Now it is evident that all future of human rights in Russia depends on the outcome of the current economic reform. The purpose of this reform is the transition from the centralized-planning regulation of economic relations to the market economy. The concept of the reform includes the stabilization of monetary system, stopping of the inflation, increase of the production, privatization of state property and establishing of a numeros social strata of private owners. It is expected that just developed private ownership will be the reliable economic basis of human rights in Russian society as it is in many other civilized countries of the world.
But in Russia, where the totalitarian way of life and thinking was omnipotent and omnipresent for many hundred years, where the developed private ownership, on land in particular, was absent even before the Communist regime, where during 70 years of this regimen they very concept of private property has been compromised in the eyes of public opinion, where the state sector of national economy and especially military industrial complex is powerful and mighty, this is exceptionally difficult task. The economic reform so far gives more negative than positive results: galloping inflation, rise of prices and decrease of production. Nevertheless even now, after only one year of the reforming, we have about 36% of privatised enterprises in the industry and more than 10% in the agriculture. But every step of the reform faces strong resistance. Here it is one of the last examples: in accordance with the governmental program of the privatisation every citizen of Russia may freely get the voucher which gives right to buy shares of any privatising enterprise. This is for the first time in the histiry of Russia when the state does not take away from but gives anything to people. As a result every citizen may become an owner and have an interest in the production with important concequences of this fact for all society.
To stop implementation of this program the communist and nationalist members of the Supreme Soviet (the Russian Parliament) introduced the bill on the priority of labour collectives in the course of privatisation. It should give the employees in the course of privatisation. It should give the employees of privatising enterprises right to buy up to 95% of shares of their enterprises. In the case of adoption of this bill by people deputies (what is quite probably because its supporters form the majority in the Parliament) scores of millions of people who are not employed in the privatising sectors of industry and services (like public officers, militaries, pencioners, teachers, doctors and many other categories of citizens) will be deprived of their right to privatisation. And this is only one instance of the struggle which is going around the reform.
In this context the position of international economic and financial organisations is of special importance. The strategy of their co-operation with Russia must be strictly purposeful. Only those directions of the reform should be supported which lead to strengthening of economic basis for real implementation of human rights in Russia.
In the political field the most important problem for implementation of human rights in contemporary Russia there is separation of powers. The Constitution of Russian Federation defines separation of powers as one of the "unshakable foundations" of Russian constitutional system (Article 1). In accordance with Article 3 of the Constitution "the system of state power in Russian Federation is based on the principles of separation of legislative, executive and judicial powers...". But this principle, which should be the guarantee of any democratic system, has became, in specific conditions of Russian reality, a continious and steady causa belli between legislative and executive powers.
The thing is that owing to historical reasons the executive power with President Eltzin on the top concentrated the more progressive forces which try to transform post-toalitarian economic and political system into democratic one.
The majority of votes in the highest legislative bodies of Russia - Supreme Soviet and in particular in the Congress of People Deputies - belongs to the communist and extreme nationalist opposition which brakes the reforms by all means. After their unification in so-called Front of National Salvation these "red-brown" became specially dangerous. Their ultimate aim is the restoration of the totalitarian regime on the very idea of individual rights and freedoms as "a western temptation which is alien to the national consciousness of Russian people".
So the competition between two powers - executive and legislative - as a matter of fact is the struggle bet ween democracy and political reaction. This contituous struggle is the source of political unstability and the menace to the very existence of democracy and human rights in Russia.
The outcome of this struggle may depend on the result of the referendum on April 11 of this year. In the course of the referendum the Russian people should decide the fate of new democratic Constitution which confirms the presidential type of government and abolishes the Congress of People Deputies as a stronghold of political reaction. The negative outcome of the referendum may signify the defeat of democracy, the transition of executive power into the hands of the most extreme political reaction, suppression of human rights and freedoms, the menace of civil war and political unstability not only in Russia itself but out of its limits. That's why the international community should keep an eye on the development of the events in Russia and, in the case of emergency, use all means which are in conformity with the contemporary international law.
In this connection I want to confirm necessity and possibility of the active international protection of human rights in the countries where their violantions threaten the international peace and security. This active approach should become prevailing in the concept of international protection of human rights at the dawn of 21st Century. It may include different forms and degrees of international influence - from observation, control and warning to the employment of the UN forces and the setting up of an international penal tribunal to punish the flagrant violations of human rights. And I think that one of the actual tasks of this meeting is to discuss just these problems, id est the future strategy of the international protection of human rights, the ways and means of such protection. And we ought to introduce some concrete proposals to the World Conference on Human Rights in Vienna as a result of this discussion. proposals to the World Conference on Human Rights in Vienna as a result of this discussion. proposals to the World Conference on Human Rights in Vienna as a result of this discussion. proposals to the World Conference on Human Rights in Vienna as a result of this discussion. proposals to the World Conference on Human Rights in Vienna as a result of this discussion.
