Russia's request for membership of the Council of Europe
Doc. 7443 Addendum II
2 January 1996
ADDENDUM II to the REPORT
Appendix to the high-level Russian message of 18 January 1995[1]
Rapporteur: Mr MUEHLEMANN, Switzerland, Liberal, Democratic and Reformers' Group
Link to
Advisory and Control Programme Addendum III Overview of the state of relations between the Council of Europe and the Russian Federation, including the Joint Programme between the Commission of the European Communities and the Council of Europe for strengthening of the federal structure, introduction of human rights protection mechanisms and legal system reform
Addendum IV Effects of Russia's accession on the organisation (Secretariat memorandum)
This document is not intended to give an exhaustive or even a fairly comprehensive description of legislation and law-enforcement practice in the Russian Federation and of efforts to improve them. The explanatory notes it contains relate only to the questions put by the Parliamentary Assembly's rapporteurs to the Russian authorities. The answers given are set out in the order suggested by the rapporteurs.
It goes without saying that the magnitude of the transformations under way in Russia in connection with the democratic, legal and market reforms as well as the plans for law-making activity and institutional changes go far beyond the scope of the questionnaire. The transformations embrace all facets of the Russian society, not just individual aspects.
I. When will the legislative instruments which are to enter into force before Russia is admitted to the Council of Europe be adopted, such as: Criminal Code; Code of Criminal Procedure; Civil Code; Code of Civil Procedure; Law on the Prison System?
The legislation in force in the Russian Federation comprises the Criminal Code, the Code of Criminal Procedure, the Civil Code, the Code of Civil Procedure, the Corrective-Labour Code and other codes, as well as basic legislative texts regulating in practice all the aspects of social relations mentioned below. In a political and legal assessment thereof, the following points should be taken into account:
Firstly, the adoption of a democratic constitution that has a direct effect on and takes precedence over all other legislative texts has radically changed the legal situation in the country. The Constitution modifies the operation of all legislative texts, both those adopted previously and those being adopted now.
Secondly, the above-mentioned legislative texts have been regularly revised and supplemented.
Thirdly, the main defect of the rules and regulations which were in force in Russia's territory before its independence lay in the fact that their application was biased towards established ideological dogmas (state control of all elements of social life; subordination of the interests of individuals to those of the state; "telephone law", etc.). After the ideological dogmas disappeared, courts and administrative authorities had a real opportunity to apply the legislation in force in accordance with the requirements of democracy, the rule of law and the protection of human rights.
The drawing up of new codes does not therefore imply any radical break in the legislative system or any renunciation of continuity. It is necessary for the systemisation of the innovations introduced into legislation and practice, for the modernisation of legislation and practice in accordance with the requirements of future development and for the taking into account of everything produced in other countries.
The drawing up of the basic legislative texts is at the following stages:
1. The Criminal Code: Two draft codes were submitted to the State Duma for consideration: one prepared by the President's State Legal Department (SLD), the other by a group of People's Deputies. On the basis thereof a conciliation committee prepared a single text. On 22 December the State Duma adopted the draft new Criminal Code at a first reading.
The positive developments that have taken place in this field since the current Criminal Code was amended in 1993 and 1994, as well as such anomalies and deficiencies as exist, will be taken into account in the course of further work on the draft new Criminal Code.
An analysis of the Criminal Code of the RSFSR currently in force, together with the above-mentioned amendments and additions, shows that its provisions generally reflect the standards and principles of the Council of Europe. Thus, the criminal law protects the right to life, the right to personal integrity, the equality of rights between citizens, the right to own property, the right to work, the right to health protection, the right to enjoy cultural achievements, freedom of conscience, freedom of association, the rights and interests of children, and other civil rights and freedoms.
However, certain articles of the current Criminal Code still reflect unequal protection of various forms of property (under Article 168, for example, damage to crops and plantations may still be prosecuted only in cases where the damage is serious and affects a collective farm, state farm or other publicly-owned type of farm; Article 195 provides for the institution of criminal proceedings only in respect of the stealing or damaging of documents, seals and stamps of state or social institutions, enterprises and organisations; Article 196 contains similar provisions regarding forgery or the sale of forged documents, seals, etc.). Certain articles of the Criminal Code of the RSFSR still punish crimes against the USSR, such as Articles 64, 65, 69 and 72 in the first chapter of the Special Part, entitled "State Crimes", as well as a number of provisions in other chapters. In practical terms, however, this problem is dealt with by Decree No. 2 of 28 April 1994 of the Plenum of the Supreme Court of the Russian Federation, which directs the lower courts not to apply the aforementioned provisions.
2. The Code of Criminal Procedure: On 6 October 1994 the Ministry of Justice submitted a draft new code to the Government of the Russian Federation and the Administration of the President of the Russian Federation for a decision on its submission to the State Duma under the legislative initiative procedure.
It should be remembered that three variants of the draft Code of Criminal Procedure have been drawn up and submitted:
1. a draft prepared by the State Legal Department of the President of Russia;
2. a draft prepared by a working group of the Ministry of Justice; and
3. a draft prepared by the Institute of the Procurator's Office of Russia.
Despite all the differences of opinion between their authors and the divergences between the drafts themselves, these variants are basically in line with the relevant international instruments, institute judicial control over preliminary investigations and provide for the universal introduction of a jury system for all categories of criminal cases.
The criminal-procedure legislation does not yet entirely comply with international legal instruments concerning the protection of human and civil rights. In particular, it is still necessary to introduce into Russian legislation a system of judicial control over basic investigatory actions such as search, seizure, interception of postal and telegraphic correspondence and telephone tapping. The Russian Federation's present criminal-procedure legislation provides only for judicial control over the arrest and detention of a person (Articles 220-1 and 220-2 of the Code of Criminal Procedure of the RSFSR).
However, the Parliament of the Russian Federation recently adopted a number of laws which brought Russian legislation, particularly the Code of Criminal Procedure of the RSFSR, closer to international standards. Thus, a Russian Federation law aimed at revising and supplementing the law of the Russian Federation on the judicial system of the RSFSR, the Code of Criminal Procedure of the RSFSR, the Criminal Code of the RSFSR and the Code of the RSFSR on administrative offences was adopted on 16 July 1993. The law revised the Code of Criminal Procedure of the RSFSR by providing for the institution of a jury system in Russia. By a decision of the Supreme Soviet of the Russian Federation concerning the procedure for bringing the said law into effect, a jury system has been introduced for the first time and is now operating in nine territories and regions of the Russian Federation.
The State Duma of the Federal Assembly of the Russian Federation considers that the finalisation and adoption of a new Code of Criminal Procedure of the Russian Federation will take a fairly considerable time. This is due, inter alia, to the fact that the draft Code has a close relationship with the draft law on the judicial system of the Russian Federation, which is scheduled to be adopted before the end of 1995.
To achieve consistency between internationally accepted rules and Russia's domestic legislation in the field of protection and promotion of human rights, as well as to facilitate the adoption of a new Code of Criminal Procedure of the Russian Federation, some short-term measures are envisaged. One of these measures aimed at bringing our criminal procedures into line with international standards is the preparation by the State Duma of the Russian Federation of a draft law on the protection of the rights of witnesses.
3. The Civil Code: The first part of the Code (the General Part) was adopted by the Federal Assembly of the Russian Federation and brought into force on 1 January 1995. The preparation of its Special Part is nearing completion, and the State Duma will begin to examine it shortly.
The adoption of various rules and regulations without any change to the laws passed earlier has created a situation where the civil legislation in force in Russia's territory comprises four levels: the legislation of the USSR; the Civil Code and other laws adopted before 12 June 1990; the Fundamentals of Civil Law of 1991; and the Russian legislation adopted after 12 June 1990. The validity of a law (or of one of its rules) depends on its level: the USSR legislation is valid as long as it does not contradict Russian legislation; the 1964 Civil Code is valid in so far as it does not conflict with the Fundamentals of the Civil Law of 1991, etc.
Thus, the present system of civil law is ineffective and incapable of ensuring the creation and functioning of a market economy. In particular, the "market" laws (law on enterprises and entrepreneurship, law on farms, law on banks and banking activities, etc.) and the "reform" laws (on property, privatisation and price liberalisation) were drawn up without regard to the fact that they would operate in a given system of legislation. They were designed to regulate only particular situations at a particular stage of the economic reform, and they are far from regulating all spheres of market activity, relationships in civil society and the private lives of individuals. Above all, they do not contain any general rules and regulations applicable to all civil transactions, contracts and relationships (including those not provided for in special laws), nor any general rules that would determine the legal status of this or that operator in the market economy or participant in civil legal relations.
The problem was solved through the adoption of the first part of the new Civil Code of the Russian Federation, a fundamental law laying down the general legal principles of market relations, ensuring the stability of civil legislation and the propriety of its texts and guaranteeing freedom of private ownership and of contractual relations.
The new Civil Code is a foundation for the development of a system of civil legislation. It is to serve as a basis for the adoption of harmonised legislative instruments determining the legal status, organisation and other aspects of participants in market relations, including their rights, obligations and responsibilities, as well as a legal regime of ownership. The legislation must include a rule ensuring the precedence of the Civil Code over other rules regulating civil relations.
4. Code of Civil Procedure: The preparation of a draft Code for consideration by the Duma is being completed.
The State Duma of the Federal Assembly of the Russian Federation considers that the finalisation and adoption of the draft new Code of Civil Procedure of the Russian Federation will take a fairly long time because it needs to be co-ordinated with the draft law on the judicial system of the Russian Federation.
5. Law on the prison system: A draft new Russian Federation code on the execution of criminal sentences has now been prepared at departmental level.
The Corrective-Labour Code of the RSFSR is at present in force in Russia. During the post-Soviet period (in 1992) some very important changes were made to it in order to protect the rights of prisoners. Further improvement of the prison system will require additional major efforts.
Alongside the corrective-labour legislation that regulates the execution of criminal sentences, the law of 21 July 1993 on establishments and organs executing custodial sentences, which is in fact a law on the prison system, is also in force in Russia. However, under this law the Russian prison system is a centralised structure of the executive branch of the federal government. This runs counter to Articles 71-73 of the Constitution of the Russian Federation, which make questions of prison practice the responsibility of the Federation's components. Accordingly, there is an urgent need to prepare and adopt a new law aimed at making amendments and additions to the aforesaid law.
II. When will the following legislative instruments be adopted or corrected: Law on the status of judges; Law on the Public Procurator's Office; Law on the profession of advocate; Law on national minorities; Law on freedom of assembly (demonstrations); Law on the Commissioner for Human Rights (Ombudsman); Law on religious organisations (freedom of religion); Law on local self-government; Law on television and radio broadcasting?
1. Law on the status of judges: This was presented to the State Duma by the Constitutional Court, the Plenum of the Supreme Court and the Superior Court of Arbitration. It is now under consideration by the State Duma's Committee on Legislation and the Reform of the Judicial and Legal System.
The draft law is designed to continue the judicial reform under way in Russia since 1991. The Russian Federation law on the status of judges in the Russian Federation, adopted on 26 June 1992, marked a new step towards creating an independent judiciary. The Supreme Court of the Russian Federation submitted the draft of the law in the exercise of its right of legislative initiative.
The law stipulates that judicial power in the Russian Federation shall be vested only in courts consisting of judges and persons designated as representatives of the people to administer justice in cases prescribed by the law. In their administration of justice, judges are independent, subject only to the law and accountable to nobody. Orders and instructions given by judges in their official capacity are mandatory for everyone without exception. All judges in the Russian Federation have a common status and differ only in their powers and jurisdiction.
A judge must meet high standards: he must strictly observe the Constitution of the Russian Federation and other laws; in all circumstances he must avoid doing anything liable to diminish the authority of the judiciary, impair its dignity or cast doubt on its objectivity, fairness or impartiality; he may not be a People's Deputy or a member of any political party or movement, and may not engage in any business activities or combine his work as a judge with any other gainful activities except academic, educational, literary or other creative activities.
A procedure has been established for the selection of candidates for judicial posts, the investiture of judges and their swearing-in (text of oath and procedure).
Constitutional guarantees of the independence of judges are ensured by: the statutory procedure for the administration of justice; the prohibition of any interference with the administration of justice on pain of prosecution; the statutory procedure for suspending and terminating the powers of a judge; the judge's right to resign; and the level of remuneration and social benefits payable by the state to judges in accordance with their high status.
The most important guarantee of a judge's independence, however, is the principle of the irremovability of judges, whose powers have no expiry date.
The law on the status of judges in the Russian Federation lays down a detailed procedure for the suspension and termination of the powers of judges as well as the terms and conditions of their resignation.
Judges are also entitled to a pension on a generally applicable basis or a non-taxable monthly allowance for life. There are also other benefits for judges and for members of their families.
Boards of qualified judges are established to consider issues concerning the selection of candidates for judicial posts, the suspension or termination of judges' powers, the resignation of judges, the protection of judges' immunity and the evaluation of judges' performances.
In connection with the adoption of the Russian Federation's Constitution, the Russian Federation's Supreme Court, in conjunction with its Constitutional Court and Superior Court of Arbitration, recently submitted a draft law aimed at supplementing the law on the status of judges.
An additional guarantee of the independence of courts will be provided by the federal law on the state protection of judges, law-enforcement officers and monitoring agencies, which is expected to be passed soon. It contains a number of measures to ensure judges' security and their legal and social protection in the case of a threat to their lives, health and property in connection with the performance of their duties.
On 10 November 1994, the Council of the State Duma of the Russian Federal Assembly considered a draft federal law aimed at making changes and additions to the Russian Federation law on the status of judges in the Russian Federation, which takes account of international standards in this field.
2. Law on the Procurator's Office: Alternative draft laws are being prepared by the State Duma and the executive.
At present the Russian Federation's law of 17 January 1992 on the Procurator's Office is in force. The forthcoming drafts are intended to embody new principles concerning the organisation and functioning of the Procurator's Office in accordance with the Constitution.
3. Law of the profession of advocate: The State Duma is still considering the existing draft laws. A regulation on the profession of advocate in the USSR was approved at the 11th session of the USSR Supreme Soviet on 30 November 1977. Several draft laws on the same subject had been prepared within the Supreme Soviet of the Russian Federation, but none of them had been adopted. In March 1994 the Ministry of Justice submitted to the State Duma a draft federal law on the profession of advocate in the Russian Federation, which is now being finalised within the committees and commissions of the State Duma.
Draft laws on the profession of advocate were repeatedly discussed in the committees of the State Duma and made the subject of public discussions and parliamentary hearings. The recent parliamentary hearings were held in November 1994. The State Duma would be ready, in principle, to adopt this law speedily. The main obstacle is a lack of agreement on the draft among different corporations of lawyers (traditional colleges of lawyers and new private corporations).
The draft law on the profession of advocate will shortly be submitted to the Secretariat of the Council of Europe for examination.
4. Law on national minorities: Alternative draft laws have been prepared by the State Duma and the Government. The Government proposed including the draft law on national minorities in a single draft law on national and cultural autonomy.
A finalised draft law on national and cultural autonomy was submitted to the Government on 28 September 1994.
The authors of the draft concluded that it was not expedient to place the articles on the status of national minorities in a separate draft law on national minorities, as it is national minorities that are the main target of the right to national and cultural autonomy and it is their rights to free development of culture, language and traditions that need legal regulation. Other rights of national minorities — political, civil, etc. — are guaranteed by the Constitution of the Russian Federation, the relevant laws and other legislative instruments which provide for equality of rights and freedoms between citizens, irrespective of their nationality.
Thus the draft law on national and cultural autonomy is intended to take account of the interests of national minorities and, to that effect, its scope is widened according to the number of groups covered by the right to national and cultural autonomy.
The right to such autonomy should be enjoyed by members of all the ethnic groups of Russia, including the major ones, such as the Tatars, the Mordovians and the Chuvashes living either in compact groups or in diasporas throughout the country outside their respective republics and autonomous regions. It is difficult to separate the standards of the two legislative instruments in practice, because they deal with the same subject.
The draft law on national and cultural autonomy was submitted to the components of the Russian Federation for their comments. One hundred and thirty out of the total of 250 comments received from 60 components of the Russian Federation were taken into account during the finalisation of the draft.
As the vast majority of national minorities in Russia have their own statehood or autonomy, priority attention is now being paid to the preparation of a draft law on small ethnic groups. The State Duma's Committee on National Minorities has almost finished its work on the text. The stumbling block here is the definition of what constitutes a small ethnic group. The initial proposal was to apply this term to all ethnic groups comprising fewer than 50 000 people. However, the representatives of certain ethnic groups enjoying the status of republics within Russia demanded at the last moment that this figure be raised to 100 000; this would entail basic changes in the design of the draft, which was intended to assist ethnic groups (first of all, those living in the North and the Far East) that are unable to survive without such assistance. The draft law is to be submitted to the State Duma in late 1994 or early 1995.
5. Law on freedom of assembly (demonstrations): On 12 October 1994 the State Duma adopted at a first reading the draft law on assemblies, meetings, demonstrations, processions and picketing.
Freedom of assembly (demonstrations) with due regard to the standards and principles of the Council of Europe is guaranteed by the Constitution of the Russian Federation. Its implementation is regulated, inter alia, by the Decree of the Presidium of the Supreme Soviet of the USSR on the procedure for organising and holding assemblies, meetings, street processions and demonstrations in the USSR, dated 28 July 1988 (No. 9306-XI). The latter was approved in accordance with the USSR law of 28 October 1988 on the approval of decrees of the Presidium of the Supreme Soviet of the USSR introducing changes and additions to certain legislative instruments of the USSR. It is still in force in so far as it does not contradict the Russian Federation's Constitution of 12 December 1993.
6. Law on the Commissioner for Human Rights: The law is expected to be adopted in early 1995.
The draft federal constitutional law on the Commissioner for Human Rights in the Russian Federation was adopted at a first reading by the State Duma of the Federal Assembly on 20 July 1994. The idea of establishing the office of ombudsman in the Russian Federation was originally expressed in the Declaration of the Rights and Freedoms of People and Citizens, adopted by the RSFSR Supreme Soviet on 22 November 1991. A Commissioner for Human Rights (Sergei A. Kovalev) has now been appointed.
7. Law on religious organisations and freedom of religion: An updated and more detailed version of the law is now being prepared by the Government.
It should be noted, however, that basic religious standards corresponding to the standards and principles of the Council of Europe are already operative in the Russian Federation thanks to the RSFSR law on the freedom of religion of 25 September 1990, in connection with which the Resolution of the Supreme Soviet of the RSFSR concerning the procedure for its entry into force was adopted on 25 October 1990. The law is still in force in the Russian Federation in so far as it does not contradict the Russian Federation's Constitution.
8. The draft law on local self-government or, more precisely, the draft federal law on the general principles of organising local self-government in the Russian Federation was prepared in accordance with Article 72, 13th paragraph, of the Constitution of the Russian Federation and Article II, 12th paragraph, of the Federation Treaty. It establishes the general principles and guarantees of local self-government as a part of the state system of government, as well as the system of rights and responsibilities of the population in the field of local self-government; it also provides a basis for the legislative regulation of matters relating to local self-government by components of the Russian Federation.
So far the draft has passed the stage of co-ordination with the Russian Ministry of Justice, Ministry of Finance and Ministry of Economics, the executive and legislative authorities of the components of the Russian Federation, the Institute of Legislation and Comparative Jurisprudence, the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Superior Court of Arbitration of the Russian Federation.
It should be noted that the draft law was carefully considered by the experts of the Council of Europe and was given a favourable reception.
On 22 September the draft law was considered by the Presidium of the Government of the Russian Federation, which endorsed it and recommended its submission to the State Duma. On 6 October it was published in the Rossiyskaya Gazeta.
A draft law with a similar title was also drawn up within the State Duma's Committee on Local Self-Government.
9. The federal law on television and radio broadcasting: Adopted by the State Duma at a first reading on 26 October 1994, the law refers to the rules of international law, provides for state guarantees of citizens' rights to freely seek, receive, produce and distribute information through radio and television, reaffirms the commitment to freedom of speech and freedom of mass media and to the protection of freedom of expression, guarantees the independence of television and radio companies vis-à-vis state organs, technical services, public and other organisations, and prohibits censorship in the field of television and radio broadcasting, as well as the establishment of any organisational structures capable of performing censorship functions.
The Government of the Russian Federation has drawn up an alternative version of this draft law.
The Federation Council, together with representatives of the journalistic profession, held a wide-ranging discussion on the draft law on television and radio broadcasting during which some concrete remarks and proposals were made with a view to arriving at a broader and more accurate formulation of the principle of the freedom of the mass media.
III. Will the above-mentioned legislative instruments take account of the standards and principles of the Council of Europe?
In accordance with the general working procedure of the Federal Assembly, the Administration of the President and the Government of the Russian Federation, it is obligatory to take account of international standards during the preparation of draft laws, orders and decrees.
IV. What stage has been reached in the preparation of the following draft laws, and what is it planned to do to ensure their conformity to European standards: draft law on the powers of security agencies in matters concerning the conduct of investigations; draft law on state mass media coverage of the activities of state authorities; draft law on state support for the mass media in the Russian Federation; draft law on compulsory Aids testing for aliens entering the Russian Federation?
Work on the above draft laws is at the following stages:
1. The draft law on the powers of security agencies in matters concerning the conduct of investigations does not appear in the State Duma's law-drafting plans. The State Duma's Committee on Legislation is currently working on a draft law on federal state security agencies.
A draft federal law on investigatory machinery in the Russian Federation has been prepared. It provides that the security agencies should carry out operational searches, while investigations should be conducted only by members of the Committee of Investigation.
At the same time, according to the draft federal law on the counter-intelligence agencies of the Russian Federation (adopted on 18 November 1994 at a first reading), the counter-intelligence agencies are entitled to conduct inquiries and preliminary investigations in cases involving offences which are statutorily assigned to their jurisdiction.
2. The law on the procedure concerning state mass media coverage of the actions of authorities was adopted by the State Duma, but rejected by the Federation Council on 27 July 1994. In a second vote in the State Duma on 12 October 1994 the two-thirds majority required to confirm the State Duma's previous decision was not obtained. A conciliation committee has been set up.
3. The draft law on state support for the mass media of the Russian Federation was adopted by the State Duma at a first reading on 20 July 1994. The draft raised objections on the part of the Federation Council, which deemed it inconsistent with the requirements of the Constitution and the Federation's anti-monopoly legislation.
V. What measures will be or have been taken to improve the deplorable conditions of detention in Russian prisons, particularly in pre-trial detention centres (SIZOs)? Are the Russian authorities ready to implement Recommendation R (87) 31 (of the Council of Europe's Committee of Ministers) on European prison rules? When will responsibility for running the prison system actually be transferred to the Russian Federation's Ministry of Justice?
The situation in places of detention remains unsatisfactory. In particular, 117 pre-trial detention centres and prisons out of 137 (76%) are overcrowded. Sixty per cent of the SIZOs are unfit for use, and 26% are to be demolished.
The periods of detention set by criminal procedure legislation are frequently violated. The running of these institutions is still governed by the regulations of 11 July 1969 on preliminary detention and the regulations of 13 July 1976 on procedure concerning the short-term detention of persons suspected of committing offences, which do not meet present-day requirements.
The problem is being discussed at a high political level. There is a growing realisation in society that a sound prison system is a prerequisite of combating crime, ie a humane prison system capable of reforming convicted persons.
In recent years a set of measures has been adopted to improve the situation in Russian colonies and prisons.
The Government is now considering a draft federal programme for the building and reconstruction of pre-trial detention centres and prisons, under which more than 80 000 extra places will be provided and 30 000 places refurbished over five years.
A number of important amendments and additions have been made to the Corrective-Labour Code of Russia. The main ones resulted from the law of 12 June 1992 on "introducing amendments and additions to the Corrective-Labour Code of the RSFSR, the Criminal Code of the RSFSR and the Code of Criminal Procedure of the RSFSR". The Corrective-Labour Code was supplemented with rules on freedom of conscience for prisoners, the right of prisoners to personal safety, supervision by People's Deputies of the activities of corrective-labour institutions, improvement of the food rations of prisoners, the possibility for prisoners of receiving a larger number of parcels, visits and telephone calls from relatives as well as sending and receiving more letters and periodicals, the right of prisoners to leave the institution in the case of exceptional personal circumstances, as well as prisoners' exeats and the special rights of prisoners who are pregnant or disabled. The law also added to the Corrective-Labour Code a special Section VI on higher requirements for the personnel of penal establishments and their responsibility for "cruel, inhuman and degrading actions".
In October 1994 the State Duma adopted a law on the holding in custody of persons suspected or accused of committing offences, which meets the international standards applicable in this matter.
The law provides, inter alia, for the lifting of restrictions on correspondence for suspected and accused persons, the acquisition by them of foodstuffs and essential items and the receipt of parcels. Such persons are entitled to be informed about the detention regime when arriving at places of preliminary detention; they may perform religious rites, and they have a right to personal safety as well as other rights. At the same time the law affords additional guarantees aimed at ensuring respect for these rights.
Moreover, the law allows heads of detention centres to release of their own accord prisoners whose period of detention has expired and has not been duly extended.
A reform of criminal procedure legislation is now being prepared. It should result in shorter periods of custody during criminal investigations and judicial proceedings.
Pre-trial detention centres are becoming more open to visits by representatives of public human rights associations and international organisations as well as the mass media. Analytical and critical publications as well as television and radio reports on conditions in pre-trial detention centres and prisons have become widespread, serving as an effective form of public control and influence over the state of the penal system.
A commission for the investigation of cases of human rights violations involving persons suspected or accused of committing offences who are kept in pre-trial detention centres and places of temporary detention under the authority of the Ministry of the Interior of the Russian Federation has been set up and, with the help of the resources of the above-mentioned legislative body, is taking measures to improve conditions in detention centres and prisons.
The current draft of the new Criminal Code of the Russian Federation seeks to establish the primacy of human values and provide a system of safeguards which would protect prisoners' human dignity as well as bring the manner in which sentences are enforced and prisoners treated as fully into line with international standards as possible. The Russian Federation's law which revised and amended the current Corrective-Labour Code in 1992 reflects a new approach to the rights of prisoners as persons and citizens. Their rights can be restricted only by law, and this precludes such matters from being settled in a bureaucratic manner. The law affords new opportunities for religious organisations to deal with prisoners. The main task of penal institutions is to reform offenders and ensure their social rehabilitation. Continuation of the current state policy of ensuring more humane conditions in pre-trial detention centres and prisons and implementation of the measures provided for in the federal programme for the building and reconstruction of pre-trial centres and prisons, as well as the contents of the above-mentioned federal law, will eventually enable detention conditions to be brought into line with the requirements of Recommendation No. R (87) 3 concerning European prison rules, adopted by the Council of Europe's Committee of Ministers on 12 February 1987.
At the same time it should not be forgotten that, in the context of a budgetary deficit, the implementation of the entire spectrum of planned measures would involve a significant financial outlay. Such measures will be introduced in stages.
In accordance with the Russian Federation's law of 1993 on the institutions and agencies enforcing criminal sentences in the form of deprivation of freedom, the unified criminal-penalty enforcement system (CPES) comes under the Ministry of the Interior of the Russian Federation. It will not be possible for the CPES to be subordinated to Russia's Ministry of Justice until the aforementioned law has been amended.
There are some countries in the world where the prison system is administered by state authorities other than the Ministry of Justice. Therefore, without ruling out the possibility of future changes in the current administration system, we shall have regard both to the multi-optional character of existing standards and to our own national characteristics.
VI. When will the President of the Russian Federation's Decree No. 1226 of 14 June 1994 on urgent measures to protect the population from gangsterism and other manifestations of organised crime be amended to ensure its total conformity to the Constitution? What measures will be taken (and when?) to preclude the emergence of such phenomena in future?
Adoption of the President of the Russian Federation's Decree No. 1226 of 14 June 1994 on urgent measures to protect the population from gangsterism and other manifestations of organised crime was necessitated by exceptional circumstances due to two basic factors: an unprecedented wave of organised crime and corruption, and the fact that existing criminal legislation did not match the extent of the social threat posed by these phenomena, which have endangered the very existence of the Russian state.
By providing for extraordinary measures to combat organised crime, the decree comes into conflict with the provisions of Chapter 2 ("Human and civil rights and freedoms") of the Constitution of the Russian Federation, the generally recognised principles of criminal-procedure law, certain articles of the RSFSR Code of Criminal Procedure and the Russian Federation's law of 13 March 1992 on operational search activities in the Russian Federation. In this connection, on 22 June 1994 the State Duma of the Federal Assembly of the Russian Federation adopted Decision No. 141-1GD on the protection of the constitutional rights and freedoms of citizens in the implementation of measures to combat crime, which recommends the President of the Russian Federation to refrain from applying Decree No. 1226 of 14 June 1994 until it has been brought into line with the Constitution of the Russian Federation.
After the decree was adopted, a number of steps were taken to ensure that its practical application conformed to the Russian Constitution and the basic human rights and freedoms enshrined in it. On 24 June 1994 a joint instruction was issued to organs of the Ministry of the Interior, the Procurator's Office and the Federal Counter-intelligence Service on the procedure for implementing the provisions of the President of the Russian Federation's Decree No. 1226 of 14 June 1994, which, in particular, requires public prosecutors "to take the necessary measures for the timely identification and elimination of cases of illegal arrest of citizens and unlawful carrying out of expert examinations without sufficient reasons".
In a special letter from the President of the Russian Federation to Mr S. A. Kovalev, the Commissioner for Human Rights, the latter was requested to monitor personally the implementation of the decree and inform the President of all identified cases of human rights abuses.
At the same time the problem necessitates the adoption by the Russian Parliament of legislative texts designed to ensure the effective combating of organised crime.
As in all other cases, one of the decree's articles provides for its remaining in force until replaced by a law.
It is anticipated that an effective settlement of situations similar to that connected with the adoption of the President of the Russian Federation's Decree No. 1226 of 14 June 1994 will in future be provided by the Constitutional Court of the Russian Federation. Its jurisdiction includes the consideration of matters pertaining to the conformity of presidential decrees with the current Constitution of the Russian Federation. The provisions of any decrees declared unconstitutional by the Constitutional Court become null and void (Constitution of the Russian Federation, Article 125, paragraph 6).
VII. What measures will be taken (and when?) to ensure the observance throughout the Russian Federation of Article 27 of the Constitution as well as of the law (of 25 June 1993) on the right of citizens of the Russian Federation to freedom of movement and freedom to choose their place of residence or domicile within the territory of the Russian Federation?
In accordance with Article 27, paragraph 1 of the Constitution of the Russian Federation, every person lawfully situated in the territory of the Russian Federation has the right to move about freely and choose his place of residence and domicile. On 25 June 1993 the Russian Federation's law on the right of citizens of the Russian Federation to freedom of movement and freedom to choose their place of residence and domicile within the Russian Federation was adopted. The law provides for the replacement of the authorisation-based system by a declaration-based procedure of registration by citizens of their place of residence and domicile within the territory of the Russian Federation for the purpose of ensuring the necessary conditions for exercising the rights and freedoms of citizens of the Russian Federation as well as the fulfilment by them of their obligations towards other citizens and towards society and the state.
A person who is not a citizen of the Russian Federation and is lawfully situated in its territory has the right to freedom of movement and the right to choose his residence and domicile within the Russian Federation in accordance with the Constitution and laws of the Russian Federation as well as the international treaties to which the Russian Federation is a party.
In full compliance with the Constitution of the Russian Federation, the present law envisages an exhaustive list of reasons for restricting the right of Russian Federation citizens to freedom of movement and choice of a place of residence or domicile within the Russian Federation. Thus the right may be restricted as follows: in the border strip; in closed military settlements; in closed administrative and territorial entities; in ecological disaster zones; in individual areas and human settlements where a threat of a spread of infectious or epidemic non-infectious diseases and mass poisoning has compelled the authorities to impose special conditions and regimes concerning residence and economic activities; in an area where a state of emergency or martial law has been imposed.
Furthermore, in 1990 the government of the former USSR began to take measures to bring the country's passport legislation into line with the rules of international law. Thus, the USSR Council of Ministers, by Decree No. 907 of 8 September 1990, removed restrictions on the issue of residence permits to persons with previous convictions, repealed the ban on certain categories of citizens residing in Moscow, the Moscow Region and Leningrad and cancelled the "secret", "not for the press" and "confidential" stamps on decrees and instructions concerning residential matters which it was not permissible to publish previously.
Thus, from the legislative point of view, the only restriction on the issue of residence permits that is still in effect at present in the greater part of the territory of the Russian Federation is connected with the observance of the living-space health norm laid down in housing legislation. Apart from that, residence permits serve a registration function (notification).
However, even though the right to freedom of movement and choice of a place of residence is enshrined in Article 27 of the Constitution of the Russian Federation and in the law on the right of citizens of the Russian Federation to freedom of movement and freedom to choose their place of residence and domicile within the Russian Federation, in practice the right is not yet respected in the territory of the Russian Federation. This is largely due to the fact that in a number of regions, particularly in Moscow, the Moscow Region and the Krasnodar and Stavropol Territories, a complicated demographic situation has arisen: there are a large number of refugees as well as persons who have been forced to leave their homes, and the environment is highly criminogenic.
On the positive side, it should be noted that the courts have satisfied some citizens' requests to exercise their freedom to choose their place of residence. However, a situation where one of the basic constitutional rights may be enjoyed only through recourse to a court of law cannot be considered normal.
In order to ensure the implementation of the Constitution and the law on the right of citizens of the Russian Federation to freedom of movement and freedom to choose their place of residence and domicile within the Russian Federation, the Ministry of the Interior of Russia, together with the Ministry of Justice and other interested ministries and departments, prepared some draft rules on the registration of citizens and submitted them in March 1994 to the Government of the Russian Federation. This text embodies machinery for implementing the above-mentioned legislative instruments and permits the full exercise of the right of Russian citizens to freedom of movement in compliance with the relevant legislation and international rules.
Referral of the matter to the Constitutional Court for consideration would help to rectify the situation where the authorities of Moscow and other large Russian cities are violating Article 71, paragraph c, of the Russian Federation's Constitution (which assigns problems concerning the regulation and protection of human and civil rights and freedoms to the jurisdiction of the Russian Federation). A decision by the Constitutional Court of the Russian Federation acknowledging the unconstitutional nature of Moscow regulations that hinder Russian citizens' exercise of their right to freedom of movement and choice of a place of residence or domicile within the Russian Federation could contribute to the enjoyment of that right by Russian citizens.
VIII. What concrete measures will be taken (and when?) to improve existing law-enforcement practice for the purpose of guaranteeing human rights and ensuring the rule of law as well as creating the conditions for establishing market relations?
The legal reform now under way in our country is intended to solve these problems. Its main aspects are the strengthening of the judicial system and the improvement of legislation.
Article 18 of the Constitution of the Russian Federation states that human and civil rights and freedoms are directly enforceable and are safeguarded by justice. Article 15 of the Constitution stipulates that, in the case of conflict between a Russian law and an international treaty of the Russian Federation, the international treaty is applicable.
Application of the constitutional provision is ensured, inter alia, by the decision of 29 September 1994 of the Plenum of the RF Supreme Court on the implementation by the courts of decisions of the Plenum of the RF Supreme Court, in particular, Decision No. 3 of 27 April 1993 (on practice concerning judicial verification of the legality and justification of arrests or the prolongation of periods of detention), which informs courts that the generally accepted principles and rules of international law as well as international agreements binding on the Russian Federation take precedence over the country's legislation.
With regard to the creation of legal conditions for safeguarding market relations, courts are working towards this aim as the process of improving legislation in the light of the new economic policy continues.
On 29 September 1994 the Plenum of the RF Supreme Court adopted a decision on procedure concerning the hearing by courts of cases relating to the protection of consumers' rights, which clarifies the application of rules deriving from the law on the protection of consumers' rights as well as other laws on the same subject which have a direct impact on the market.
It should be pointed out that recent years have seen the adoption of a number of statutory decisions aimed at guaranteeing human rights and ensuring the rule of law in the conduct of law-enforcement activities.
For instance, not only is a defence lawyer normally allowed to take part in a case from the moment a charge is brought, but in the event of a person suspected of committing an offence being arrested or in the event of a person being taken into custody before a charge is brought, the presence of a defence lawyer is permitted from the moment the arrest report or the order prescribing a measure of suppression is issued.
A system of judicial verification of the legality and justification of arrest or the prolongation of a period of detention after a complaint has been lodged by the person detained or by his lawyer or legal representative has been established, together with a system of judicial verification of the application of some other restrictive measures at the preliminary investigation stage.
A jury system for dealing with a specific category of cases is being introduced progressively for one group of regions at a time.
The State Duma is considering some draft laws aimed at ensuring the safety of judges, law enforcement officers and other participants in criminal proceedings.
During the present period of judicial reform, the process of permanently embodying guarantees of human rights in legislation will be completed when the federal laws on the judicial system and the administration of justice and the Code of Criminal Procedure have been approved.
The approval of the Civil Code of the Russian Federation and various other federal laws by the State Duma will help to create legal conditions for establishing market relations. The creation of a system of arbitration courts to deal with economic disputes on a contentious basis — instead of the former administrative basis — will also make a contribution.
On 22 December 1994 the State Duma approved at a second reading the Code of Arbitration Procedure and the Law on Arbitration Courts.
IX. On what grounds and for what reason do the authorities deny international non-governmental organisations access to prisons and contacts with persons in need, particularly homeless children?
At present there are no legal or institutional obstacles preventing representatives of international non-governmental organisations from having access to penal institutions in the Russian Federation or from providing direct help to persons in need.
A statutory basis has been created for participation by the public in work with prisoners. The Corrective Labour Code has been amended with a view to guaranteeing freedom of conscience for prisoners and enabling places of detention to be supervised by public organisations. In this respect no distinction is made between national and international public organisations.
The most active role in this field is played by religious organisations which are engaged in educational activities in colonies and prisons, provide humanitarian aid to prisoners and promote their rehabilitation process.
Members of international human rights organisations have repeatedly visited Russian penal institutions. Senior officials of the Ministry of the Interior hold regular meetings with representatives of these organisations to consider specific issues relating to prison activities. We are interested in further developing such contacts on the understanding that they would not be reduced to mere study visits to prisons by representatives of such organisations but would be aimed at providing prisoners with practical help.
X. Will measures be taken to ensure more equality between men and women in general and guarantee equal employment opportunities for women in particular?
The problem of discrimination against women in the process of transition to a market economy and to democracy has become more acute. The state is aware of the problem and is keeping it under review in the hope of finding a solution thereto.
As the successor state to the USSR, the Russian Federation has taken on obligations arising from the Convention on the Elimination of All Forms of Discrimination against Women (including acceptance of the compulsory jurisdiction of the International Court of Justice for disputes relating to the interpretation and application of the convention).
The Russian Federation's Constitution of 1993 (Article 19, paragraph 3) lays down the following principle: "Men and women have equal rights and freedoms and equal opportunities to exercise them".
Important guarantees of equality between women and men are contained in the Russian Federation's legislation.
In respect of the acquisition, alteration or retention of citizenship, equality of rights between men and women is provided for in the RSFSR law on RSFSR citizenship (28 November 1991), as well as in the RSFSR law making changes and additions to the RSFSR law on RSFSR citizenship (17 June 1993). The law provides guarantees for a woman's citizenship in the event of her marrying a foreigner.
Under Article 37 of the Russian Federation's Constitution, women have the same right as men to dispose freely of their aptitudes for work and choose a type of activity and occupation. At the same time the country's Labour Code contains provisions relating to the special features of women's work, namely activities for which they may not be employed, restrictions on women's work at night, a ban on making pregnant women and women with children under 3 years of age work overtime or perform duties away from their usual place of work, limitation of the utilisation of women with children under the age of 14 for overtime work and for duties away from their usual place of work, transfer of pregnant women and women with children aged under 18 months to light work, pregnancy and maternity leave, leave for looking after a child, guarantees relating to the recruitment and dismissal of pregnant women and women with children, and several other provisions.
An unsubstantiated refusal to recruit women is prohibited; nor may their wages be reduced simply because they are pregnant or have children.
The changes made to the labour legislation of the Russian Federation in 1992-93 were aimed at establishing equal opportunities in the upbringing of children for all members of the family.
All citizens (both men and women) have equal personal and property rights in family relations. The family is under the state's protection, and the state safeguards and encourages maternity (RF Constitution, Article 38).
Questions concerning the provision of pensions for women are governed by the Labour Code of the Russian Federation and by the RSFSR law on state pensions in the RSFSR. Women have the right to retire on a pension at the age of 55, ie five years earlier than men.
Pursuant to a decree of the President of the Russian Federation, the Government has since 1993 been preparing a comprehensive federal programme entitled "Women of Russia" which provides for the treatment of such issues as the situation of women on the labour market, the guaranteeing of women's rights to health care and the organisation of social services for women.
In 1993 the Government began to implement a federal programme called "Safe motherhood", which includes measures aimed at promoting mothers' and children's health, reducing maternal and infant morbidity and mortality, organising preventive health care for women and children, establishing a system of advisory and diagnostic facilities for women and children and introducing state family planning arrangements.
State policy in the field of social protection for women is intended:
to enhance national machinery for improving the situation of women and provide the resources necessary for its functioning (finance, personnel, etc.);
to develop a legislative and regulatory basis for solving women's problems;
to change the labour market situation in order to make effective use of all labour resources, including women, and improve their competitiveness; to overcome segregation in the labour sphere and provide citizens with equal opportunities in practice for the realisation of their occupational potential;
to conduct targeted activities in the fields of education and public health in order to ensure equal opportunities;
to give state support to public initiatives and the independent women's movement.
The executive, judicial and legislative branches of power alike realise the need to put into coherent practice an anti-discriminatory policy and a policy of equal rights and opportunities, to remove unjustified differences in the social status of men and women and to develop and improve national machinery aimed at the effective exercise of equal rights and opportunities for both sexes.
Thus, the federal and constitutional draft law on the Commissioner for Human Rights in the Russian Federation specifies that the protection of the rights of women affected by discrimination is a priority task for the Commissioner. The adoption of this provision is an important step towards the improvement of national machinery for the protection of women's rights.
The political group "Women of Russia" plays a notable role in the promotion of anti-discriminatory legislation in the State Duma.
Chapter XII of the draft Labour Code of the Russian Federation, relating to women's work, was subjected to an expert appraisal and found inconsistent with the constitutional principle of equal rights and opportunities. The task of adjusting the provisions of this chapter lies ahead.
In general, it can be noted that the present stage is one of transition to a policy of equal rights and opportunities for men and women.
XI. When are the three vacant posts of judges of the Constitutional Court to be filled and when will the Court begin to function?
According to the Russian Federation's Constitution of 1992 and the federal constitutional law on the Constitutional Court, the Court will become operational upon the election of all its 19 judges. The President of the Russian Federation has put forward candidatures to fill the one post that is still vacant. They will be considered by the Federation Council shortly.
XII. Is the transfer of some functions of the Procurator's Office to administrative courts (yet to be created) envisaged? Will there be other effective remedies against administrative acts that contradict the law?
In the framework of the judicial reform, the enhancement of the role of the courts and the broadening of their functions in the law-enforcement system, including administrative disputes, are being ensured in a coherent manner.
Russia's Judicial Reform Plan affords an opportunity to create a system of administrative justice in the country and, in particular, to establish courts specialising in administrative cases (at present such cases are dealt with by general courts).
Sufficiently effective remedies are envisaged to ensure the legality of administrative acts. Above all, this involves the right of the Constitutional Court to verify and judge the compliance of laws and other normative instruments with the Constitution.
Moreover, in accordance with the law of the Russian Federation of 27 April 1994 on appeals to courts against actions and decisions violating the rights and freedoms of citizens, any decree or decision by state authorities, local-government bodies, establishments, enterprises and their associations, public associations and officials, as a result of which the rights and freedoms of citizens are violated, their exercise hindered, a duty illegally imposed on a citizen or a citizen illegally prosecuted, may be contested in a court and set aside in the event of being found unlawful.
The activities of courts dealing with administrative cases (as well as a number of other cases) within their competence are monitored by the Supreme Court of the Russian Federation.
XIII. What measures will be taken (and when?) to ensure respect for human rights in the armed forces? Can officers (or other persons) be prosecuted before military tribunals and other organs for abuses connected with violations of human rights in the armed forces or for causing prejudice to the armed forces themselves?
In recent years certain steps have been taken to humanise military relations and provide a legal basis for the day-to-day activities of Russian armed forces as well as social safeguards for servicemen. In particular, lawyers, sociologists and psychologists are being appointed to units to study the moral and psychological condition of servicemen and render qualified assistance to commanding officers in their relations with their personnel.
The military reform, the professionalisation of the armed forces and the transition to manning on a contractual basis will help to eradicate bullying and other malpractices.
The monitoring by society of the activities of the military has been stepped up, which has led to the emergence and significant development of an essentially new activity of military tribunals, viz the hearing of private complaints against illegal actions by military authorities and military personnel.
The Military Procurator's Office has begun to play a more active role in identifying violations of human rights in the armed forces. In 1993, military prosecutors identified over 12 000 violations of legislation.
A major law-making effort is under way.
Three draft laws directly dealing with the humanisation of relations in the Russian Federation's armed forces are being prepared and considered in the State Duma, namely draft laws on:
civilian alternative service;
military conscription and military service (in which various types of contracts for servicemen are envisaged);
the deployment of military contingents for peace-making operations (adopted at a first reading).
The draft Criminal Code of the Russian Federation, submitted by the President of the Russian Federation to the State Duma on 20 July 1994, permits the prosecution of breaches of the regulations governing relations among servicemen of equal rank which take the form of degrading or humiliating treatment or the use of violence (Article 327).
Criminal proceedings may also be instituted in the event of one serviceman insulting another in connection with or during the performance of military duties (Article 328).
XIV. At what stage are the negotiations between the Federal Assembly and the Government (Ministry for Nationalities and Regional Policy) and the 89 components of the Federation concerning the compliance of regional legislation with the Constitution of the Russian Federation?
Negotiations are under way to define in concrete terms the jurisdiction of the Federation and its components. The negotiations with Tatarstan, Bashkortostan and Kabardino-Balkaria on this subject have already been concluded.
A number of draft laws (on the demarcation of responsibilities and powers between the Federation and its components and on changes in the constitutional and legal status of components of the Russian Federation) are being prepared, where questions concerning the compliance of the legislation of the Russian Federation's components with the Russian Federation's Constitution and federal laws are dealt with.
The law-making process in the territories, regions and autonomous areas is only beginning to unfold, as the legislative bodies were recently established on the basis of free elections. The pattern of these activities is determined by the Constitution of the Russian Federation and by federal laws. Seminars, conferences and round table meetings with heads of legislative organs are being held with a view to determining the range of issues to be regulated and the main aspects of the law-making effort within the framework of the Constitution of the Russian Federation. In addition to the activities mentioned above, alternative versions of standard (model) draft statutes have been drawn up to ensure the compliance of the statutes of the territories, regions and autonomous areas with the Russian Federation's Constitution.
The process of adopting these statutes has now begun. A study of their substance shows that they are in line with the Russian Federation's Constitution.
The laws and constitutions of the Russian Federation's component republics present a more difficult problem. Their legislative experience was gained during the time of their existence as autonomous republics. The legislative process is actively developing there. Certain republics (Tatarstan, Bashkortostan, etc.) are even going beyond the federal level in adopting individual laws, thereby setting the pace and direction of the law-making process.
On the other hand, the federal authorities have drawn attention to the incompatibility of the legislative texts of a number of the Russian Federation's components with the Russian Federation's Constitution and federal legislation and are taking concrete steps to harmonise them.
The harmonisation of laws of the Federation's components with the provisions of the Russian Federation's 1992 Constitution will continue after the Constitutional Court of the Russian Federation takes up its duties.
Special parliamentary hearings were held on these questions in the State Duma. Their findings were published in a volume entitled "The Unified Constitutional System of the Russian Federation", Moscow, 1994.
XV. When will all legislative organs of the Federation's components be freely elected?
The dates of elections in the Federation's components are set by the components' authorities. By the end of November 1994 elections to the representative organs had taken place in seventy-eight of the eighty-nine components of the Federation. In seventy-four of them the elected organs are now validly constituted and have started carrying out their functions. In four components additional elections of deputies will be held, and in eleven the dates of elections have already been set or are being considered. These include the Autonomous Republics of Komi (22 January 1995), Bashkortostan, Daghestan and Tatarstan (5 March 1995), Adigea and Northern Ossetia (March 1995).
The dates of elections have not yet been set in the Ulianovsk Oblast, nor in the Karachai-Cherkess Republic, Udmurtia and Khakassia. No proposals concerning the date of elections have been received by the Central Commission of the Russian Federation from the Chechen Republic.
XVI. What stage has been reached in work on the Eurasian Convention on Human Rights of the CIS countries, having regard to the fact that the convention may hinder the use of the monitoring machinery of the European Convention on Human Rights?
The draft Convention on Human Rights of the CIS countries is at present being studied by experts. In accordance with the decision of the CIS Council of Ministers for Foreign Affairs, a working group was established which has already held two meetings where preliminary considerations concerning the draft were discussed.
At all stages of the above-mentioned work the Russian Federation's Ministry of Foreign Affairs kept the Secretariat of the Council of Europe informed of its substance.
The recommendations made by the experts of the Council of Europe will be taken into account in the final stage of work on the draft convention.
The practice of obtaining possible additional expert conclusions from the Council of Europe on the draft convention will be continued.
XVII. When will the State Duma consider the agreement on the withdrawal of Russian troops from Moldova (Transdniestria) with a view to ratifying it?
The agreement on the legal status, procedure and schedule of the withdrawal of the Russian Federation's military units temporarily stationed in the territory of the Republic of Moldova was signed in Moscow on 21 October 1994 by the heads of government of Russia and Moldova, V. Chernomyrdin and A. Sangeli, in the presence of Presidents B. Yeltsin and M. Snegur.
On the same date the Defence Ministers of the two countries signed two other documents supplementing the basic text, viz: an agreement on jurisdiction and mutual legal assistance in relation to cases connected with the temporary stationing of Russia's military units in the territory of Moldova, and an agreement on the use of Tiraspol airport by transport aircraft of the Russian Federation's armed forces.
In the near future some further documents supplementing the agreement are to be signed.
The conclusion of the said agreement strengthens the legal basis for the temporary stationing of Russian troops in Moldova as well as their legal status, and creates a mechanism for the subsequent withdrawal of Russia's military units from the territory of Moldova. The signed agreement invalidates any speculation regarding the presence of Russian troops in Moldova and the Russian Federation's policy in that regard.
The agreement includes an important arrangement whereby practical steps to withdraw troops will be synchronised with the political settlement of the Transdniestrian conflict and the establishment of a special status for Transdniestria. In that way the vital interests of both Russia and Moldova, including the latter's Transdniestrian region, are being taken into consideration.
We believe that early ratification by the Russian Federation's State Duma of the basic agreement as well as the agreement on jurisdiction and mutual legal assistance in matters connected with the temporary stationing of Russian military units in the territory of Moldova (probably in spring 1995) will facilitate the further development of friendly relations between our countries and help to enhance Russia's image in the eyes of the public not only in the CIS countries but also in the CSCE and United Nations member states.
XVIII.What practical measures will be taken by the authorities (and when?) to put an end to illegal trading in plutonium and other fissile materials?
We are taking resolute measures to improve national arrangements for the registration and physical protection of nuclear materials, the exercise of state control over the handling of such materials and the expeditious provision of authentic and reliable information on their production, storage, use and transportation. These measures are also aimed at strengthening border and customs controls and fulfilling Russia's international obligations regarding the non-proliferation of nuclear weapons.
To this end, in September 1994 the President of the Russian Federation issued a decree on priority measures to improve arrangements for registration and protection of nuclear materials. Under the decree, an interdepartmental commission for studying the situation regarding the registration and physical protection of nuclear materials was established. Its work programme provides for an analysis of the situation on the basis of the documented results of comprehensive inspections of nuclear power stations, nuclear fuel-cycle installations, nuclear-powered ships, scientific and research institutes and other organisations and enterprises which handle nuclear materials. An interdepartmental inspection of individual enterprises and facilities according to a special schedule is also planned.
So far the commission has analysed the implementation of the state targeted programme for the physical protection of nuclear materials and facilities. The results of this analysis were reported to the President of the Russian Federation. Proposals concerning the design and introduction of a state system of registration and control of nuclear materials have been submitted to the Government of the Russian Federation.
A targeted comprehensive programme is in preparation which will provide for the drawing up of state regulations, the improvement of modern technical resources, the creation of a methodological basis, the establishment of a state information system for registering and supervising nuclear materials, the development of projects under such a system at facility level, the introduction thereof in enterprises and installations producing and using nuclear materials and the strengthening of the state inspection service. The programme will be submitted to the Government by 1 June 1995.
On 7 July 1994 the State Duma adopted at a first reading a draft federal law on state policy concerning radioactive waste management (State Duma's Decision No. 161-1GD), which, inter alia, permits the institution of criminal proceedings for infringements of the legislation on radioactive waste management (Article 50).
XIX. Are the Russian authorities prepared to establish without delay a process of wide-ranging co-operation with other countries and international organisations for the elimination of the ecological effects of natural and technological disasters?
The Russian Federation is already actively collaborating with other countries and international organisations (United Nations, Council of Europe, European Union, NATO etc.) and is prepared to extend this co-operation in order to prevent and eliminate the ecological effects of natural and technological disasters.
Within the framework of the Council of Europe's Open Partial Agreement on Natural and Technological Disasters, Russia, as a party to the agreement, has proposed a project involving the use of its national fire-fighting system based on IL-76 aircraft for operations in the European zone of the Mediterranean. In Brussels in October 1994 the ministerial meeting of the Open Partial Agreement's participating countries decided, following a proposal by Russia, to prepare and implement a joint programme (comprising the Council of Europe, the European Space Agency and the European Union) for using space technologies to prevent and eliminate the effects of various emergency situations.
As part of the collaboration with the Commission of the European Communities, a framework agreement on co-operation in international humanitarian operations, the training of east European rescue teams, mine-clearing in areas of military conflict and the carrying out of submarine works for special purposes is in preparation.
Russia has signed agreements on civil defence, emergency situations and the elimination of the effects of disasters (including the Chernobyl nuclear power station disaster) with France, Switzerland, the USA, Germany, Italy, Poland, Finland, the United Nations, Armenia, Georgia, Belarus, Ukraine and other countries and international organisations. Russia is a party to the Convention on Transboundary Effects of Industrial Accidents.
Particular importance is attached to co-operation in this area with the CIS countries. A special inter-state council has been set up for the purpose of implementing multilateral agreements.
Russia took the lead in convening specialised international conferences attended by representatives of the countries of central, eastern and south-eastern Europe (Magdeburg, 1992; Moscow, 1993; Ljubljana, 1994).
Russia also co-operates with non-governmental international ecological organisations (Club of Rome, Greenpeace etc.).
Russia has declared its intention to accede to the Bern Convention on the Conservation of European Wildlife and Natural Habitats. To this end there are plans for implementing a number of measures for the intensification of co-operation in the field of environment protection, including steps to harmonise standards, jointly produce publications, organise training attachments, etc.
XX. In addition to the foregoing, are the Russian leaders (the President, Prime Minister, Chairman of the Federation Council and Chairman of the State Duma) prepared to give an undertaking in writing that Russia will:
a. sign the European Convention on Human Rights and Protocol No. 11 thereto at the time of acceding to the Council of Europe;
b. ratify the European Convention on Human Rights and Protocol Nos. 1, 2, 4, 7 and 11 thereto within a period which, in accordance with the provisions of the Parliamentary Assembly's Resolution 1031 (1994), will not in principle exceed one year from the date of accession to the Council of Europe;
c. recognise — before the entry into force of Protocol No. 11 — the right of its citizens to submit individual petitions to the European Commission of Human Rights as well as the compulsory jurisdiction of the European Court (Articles 25 and 46 of the Convention);
d. examine Protocol No. 6 (abolition of the death penalty) with a view to ratifying it, having regard to the Parliamentary Assembly's Resolution 1044 (1994);
e. sign and ratify the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
f. organise its policy regarding national minorities in accordance with the principles set out in the Parliamentary Assembly's Recommendation 1201 (1993) and the provisions of the Additional Protocol to the European Convention on Human Rights, concerning the rights of national minorities, as well as sign and ratify the Framework Convention on the Protection of National Minorities before its entry into force;
g. examine (with a view to acceding thereto) and apply the basic principles of the Council of Europe Conventions on Extradition, Mutual Assistance in Criminal Matters, the Transfer of Convicted Persons and the Laundering, Search, Seizure and Confiscation of the Proceeds from Crime;
h. pursue its policy with due regard to the principles contained in the Social Charter of the Council of Europe with a view to its possible ratification;
i. sign and ratify the General Agreement on Privileges and Immunities (and its Additional Protocols);
j. seek to settle international disputes by peaceful means, as all members states of the Council of Europe are required to do;
k. observe the principles of international law in matters concerning the deployment of Russian troops outside the territory of the Russian Federation;
l. co-operate in the implementation of the Parliamentary Assembly's Order No. 488 (1993) on the honouring of commitments entered into by new member states of the Council of Europe?
The leaders of the Russian Federation are ready to give an undertaking in writing containing an affirmative answer to all the points in this question put by the rapporteurs of the Parliamentary Assembly if the procedure for admitting new members to the Council of Europe includes such a practice. At the same time, the following remarks should be made in respect of certain points:
— Points a, b and c:
The application submitted by Russia on 7 May 1992 for full membership of the Council of Europe contains an explicit promise to sign the European Convention for the Protection of Human Rights and Fundamental Freedoms at the time of its accession to the Organisation. Russia similarly made a promise to recognise the right of persons under its jurisdiction to submit individual petitions to the European Commission of Human Rights as well as the compulsory jurisdiction of the European Court of Human Rights.
An intention to comply strictly with the provisions of the European Convention is expressly stated in the special declaration of the State Duma of the Russian Federation's Federal Assembly (transmitted to the Council of Europe).
The signing by Russia of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as Protocol No. 11 thereto, is fully in line with our policy of carrying out democratic reforms. The European Convention basically covers civil and political rights enshrined in the Constitution of the Russian Federation. However, the Constitution of the Russian Federation provides for a much wider range of rights than the European Convention, particularly as regards the prohibition of censorship, the right to participate in the affairs of the state, equal access to public service and various other matters. A special feature of the European Convention is that, in addition to the right of complaint by one state against another, it provides for the so-called right of individual petition, ie the possibility of lodging a complaint against a state which has violated human rights enshrined in the Convention. The implementation of this provision is ensured by the stipulation in Article 46, paragraph 3, of the Constitution of the Russian Federation that "everyone is entitled, in accordance with the Russian Federation's international treaties, to appeal to inter-state bodies for the protection of human rights and freedoms if all available domestic means of legal protection have been exhausted".
After being signed, the European Convention will be submitted by the executive authority to the Federal Assembly of the Russian Federation for ratification. In view of the positions of both chambers of the Federal Assembly, the ratification procedure may be completed within one year.
— Point e:
The intention of the Russian Federation to abide by the provisions of the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment was also reflected in the special declaration by the State Duma of the Russian Federation's Federal Assembly.
It should be emphasised that the criminal-procedure legislation of the Russian Federation contains a provision prohibiting the use of violence, threats or other illegal means for the purpose of obtaining evidence during criminal investigations.
This provision is in full conformity with the United Nations Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Anyone violating this requirement of the Code of Criminal Procedure is liable to prosecution for crimes against justice (Articles 176-190 of the Criminal Code of the RSFSR).
— Point f:
The Parliamentary Assembly's Recommendation 1201 (1993) with respect to the Additional Protocol to the European Convention on Human Rights, concerning the rights of national minorities, will be taken into account during the finalisation of Russia's law on national and cultural autonomy.
Russia is already organising its policy regarding national minorities on the basis of the Convention on Guaranteeing the Rights of Persons Belonging to National Minorities, adopted by the Commonwealth of Independent States in Moscow on 21 October 1994. Ratification of the convention is planned for the first half of 1995. The convention takes account of the Parliamentary Assembly's Recommendation 1201 (1993) with respect to the Additional Protocol to the European Convention on Human Rights, concerning the rights of national minorities.
— Point g:
The departments concerned (ie Ministry of Foreign Affairs, Ministry of Justice, Federal Counter-Intelligence Service, Procurator's Office, Ministry of the Interior) are now completing their practical study of the question of Russia's accession to the Council of Europe conventions mentioned in this point.
— Point i:
The General Agreement on Privileges and Immunities and its Additional Protocols will be submitted for ratification immediately after Russia's accession to the Council of Europe.
— Point j:
1. The Russian Federation will not only "seek" to observe the principle of the peaceful settlement of international disputes but is already conscientiously complying with the principle and will continue to do so. According to Article 15, paragraph 4, of the Constitution of the Russian Federation, generally recognised principles and norms of international law as well as the international treaties of the Russian Federation are an integral part of its legal system. Thus, the principle of the peaceful settlement of international disputes, being a generally recognised principle of international law, has been integrated into the system of domestic law, thereby providing additional guarantees of its implementation.
2. As a member of the United Nations, Russia conscientiously fulfils its obligations under Chapter VI of the Charter and, together with the other permanent members of the Security Council, bears primary responsibility for the maintenance of international peace and security and, hence, for the peaceful settlement of international disputes threatening international peace and security.
While Russia has not made a general declaration recognising the compulsory jurisdiction of the International Court of Justice, such jurisdiction is nevertheless recognised in a number of cases. In particular, back in 1989 the former USSR withdrew several reservations in respect of international treaties in the field of human rights concerning the recognition of the compulsory jurisdiction of the International Court of Justice. A paper on the withdrawal of similar reservations in respect of international treaties on combating terrorism, ensuring nuclear security and other matters has been prepared for submission to the Federal Assembly.
Russia has signed the Convention on Reconciliation and Arbitration in the framework of the CSCE. Submission of the convention for ratification is now being considered.
Russia is a party to the Hague Conventions of 1899 and 1907 establishing the Permanent Court of Arbitration. We are at present participating in the work of the committee responsible for drafting amendments to these conventions, aimed at "reactivating" the Court.
The question of concluding bilateral treaties on the peaceful settlement of disputes is under examination. In particular, negotiations with a view to concluding such a treaty with Switzerland are under way.
3. Russia has repeatedly demonstrated in practice its commitment to the principle of peaceful settlement of international disputes. This is evidenced, for instance, by its active role in peace-making activities: mediation and direct participation in peace-making operations. Russia's role in the settlement of conflicts within the CIS (Tajikistan, Nagorno-Karabakh) and in other countries (the former Yugoslavia, Iraq, Palestine) is well known.
4. Russia co-operates effectively with the United Nations, the CSCE and other European institutions in the peaceful settlement of international disputes. This is illustrated by the presence of United Nations and CSCE observers in all areas of conflict where peace-making operations involving Russia are being conducted.
— Point k:
The Russian Federation is complying and will continue to comply with the principles of international law concerning the deployment of Russian troops outside its territory.
1. This affirmation reflects the Russian leadership's political will and is based, inter alia, on its unwavering commitment to the conscientious implementation of international treaties, as required by the Vienna Convention on the Law of Treaties, which is also true of treaties concluded by Russia on the deployment of its military contingents abroad.
2. These treaties, as well as the relevant international decisions, including those adopted within the CIS, have already embodied the fundamental principle of international law by virtue of which the deployment of Russian military contingents in the territories of the few states where their presence is essential is effected only with the consent of the government of the state concerned. Russia is guided by the same principle during the conduct of negotiations in cases where the requisite agreements are yet to be concluded.
3. Whenever advisable, as in the case of the agreement with the Republic of Latvia concerning the Russian radar station at Skrunde, the possibility of international monitoring of the implementation of an agreement is provided for. Specific issues concerning the status, presence and withdrawal of Russian troops stationed abroad are addressed in conformity with generally accepted international practice.
4. Russia has completed the implementation initiated by the former USSR of its commitments — and in appropriate cases has implemented its own commitments — regarding the withdrawal of troops from Hungary, Poland and the then Czechoslovakia, as well as from Germany, Latvia, Lithuania and Estonia. In several cases, the withdrawal was completed before the dates originally agreed upon, as, for instance, in the case of Germany, or even before any agreement to that effect was concluded (Lithuanian Republic). Russia has also met the wishes of its partners in various other issues connected with the deployment and withdrawal of Russian troops.
5. Russia's Constitution, providing as it does that the generally recognised principles and rules of international law as well as the international treaties of the Russian Federation are an integral part of its legal system, embodies a guarantee of the observance of such principles, rules and treaties, including treaties and agreements on Russian troops outside the Russian Federation. One should also consider in the same light the constitutional provision stipulating that the use of the Russian Federation's armed forces outside its territory falls within the jurisdiction of the Federation Council (Article 102, paragraph 1(d)) as one of the two chambers of the Federal Assembly (the Parliament of the Russian Federation), which is the Federation's representative and legislative body.
Prepared by the Inter-departmental Working Group acting in accordance with the President of the Russian Federation's Instruction No. 328-rp of 26 June 1994, entitled "Measures concerning preparation for the admission of the Russian Federation to the Council of Europe", in co-operation with the State Duma and the Federation Council of the Federal Assembly of the Russian Federation.
[1] Appendix to the message to the Parliamentary Assembly of the Council of Europe on the improvement of the Russian legislation and law enforcement practice in accordance with the Council of Europe's standards (answers to the questions put by the Parliamentary Assembly's rapporteurs).