Russia's application for membership of the Council of Europe [1]
Doc. 7463
18 January 1996
OPINION [2]
Rapporteur: Mr BINDIG, Germany, Socialist Group
I. Introduction
The procedure of examining Russia's request for membership of the Council of Europe, which had been suspended in January 1995 following Russia's intervention in Chechnya, was reopened on 26 September 1995 with Resolution 1065 (1995). The Political Affairs Committee adopted a draft opinion in favour of Russia's membership request on 20 December 1995 in Zurich, following the generally positive conclusions of the ad hoc Committee on the Russian elections. Mr M�hlemann, the Rapporteur of the Political Affairs Committee, was instructed to present his report at the January 1996 part-session of the Assembly.
Following the reopening of the procedure, and basing myself on my previous work in my capacity as Rapporteur of this Committee, which should give an opinion on Russia's application for membership from a legal and human rights' point of view, I sent a letter to Mr Lukin, the Chairperson of the Russian Special Guest Delegation on 28 September 1995, asking him for copies of eleven laws, which I felt were particularly important in the context of the admission procedure. The large majority of the requested laws were handed to me during the Committee meeting on 6 November 1995 in Prague.
During this Committee meeting, I was authorised to use expert help to further analyse the legal situation, and to visit Russia once more in the company of the experts to the same end. At very short notice, Professor Michel Lesage, Professor at the University of Paris I and Director of the CNRS Institute of Comparative Research on Institutions and the Law, and Professor Friedrich-Christian Schroeder, Professor at Regensburg University, agreed to draw up an expertise - each in his field of specialisation - on these laws, bills and decrees in the areas of the organisation of the judiciary, criminal law and proceedings, and human and minority rights and fundamental freedoms. This expertise [3] was the basis of my visit to Moscow with the experts, which took place from 8 to 10 January 1996 [4].
The discussions I had with the Russian authorities on this occasion, as well as the work of the experts - which was excellent and for which I am profoundly grateful - and the very solid report of the eminent lawyers on the conformity of the legal order of the Russian Federation with Council of Europe standards (AS/Bur/Russia (1994) 7), provide the basis on which I have drawn up this opinion.
II. The rule of law
One of the principal problems in the Russian Federation seems to be the application of the rule of law. The eminent lawyers, in their conclusions, stated that "so far the rule of law is not established in the Russian Federation" (page 85). There are several reasons for this, ranging from missing legal codification and relatively poorly developed legislation over structures and mentalities inherited from the Soviet past to simple non-appliance of newly adopted rules and regulations.
First, in many important fields, such as criminal law, criminal procedure, laws governing the execution of sentences, civil procedure and to a certain extent even civil law in general, the relevant legislation has still not been reformed. Where new legislation does exist - for example concerning the powers of the security services - it is often of poor quality; where good legislation exists - for example the Constitutional catalogue of rights and freedoms - it is often simply not applied.
Second, the mentality towards the law has not yet changed. In Soviet times, laws could be completely disregarded - party politics and "telephone justice" reigned supreme. While it cannot be said that laws are ignored as a matter of course in present times, they are disregarded if a "better" solution to a particular problem seems to present itself. This assertion is valid for every echelon of the Russian state administration, from the President of the Federation (signing, inter alia, Decree No. 1226 "on immediate measures for the protection of the population against banditry and other manifestations of organised crime") down to local officials (like those in Moscow, still practising the outlawed "propiska"-system [5]). In addition, there seems to be a new tendency even in the higher echelons of the Russian bureaucracy to diminish or deny human rights violations committed during the Soviet period.
Third, it is very difficult to enforce the law through the courts. Often, a complaint against administrative abuse cannot even be brought to court, since the prosecutor's office is the competent state organ. But even when such cases are brought to court, and the court rules against the administration, the decision is sometimes not implemented due to the low standing courts and their decisions enjoy in public opinion.
It is obvious that in this field, major reform is needed, to help draft legislation which is in conformity with Council of Europe standards, and to make sure that this legislation is subsequently implemented. The implementation side would have to aim also at changing long-ingrained mentalities, and therefore might have to involve public information campaigns, as well as specific training for those dealing with the law professionally - civil servants, lawyers, judges, prosecutors, etc. This should be the emphasis of both the Committee of Ministers' joint programme with the European Union, mentioned in paragraph 8 of the draft opinion, and the Assembly's own programme, as foreseen in paragraph 7 of the draft opinion.
As the Committee on Legal Affairs and Human Rights already remarked at its meeting in Zurich on 11 December 1995, however, the Assembly's own programme in respect of Russia to be introduced by virtue of paragraph 7 of the draft opinion adopted by the Political Affairs Committee should not lead to new types of "control", especially not to weaker than existing ones. Order No. 508 (1995) on the honouring of obligations and commitments by member states, which applies to all member states, is the Assembly's own control procedure. The Assembly should avoid any double standards and special treatment as far as controlling and monitoring member states' commitments and obligations are concerned, and should thus not invent a new special control procedure only for Russia, but should rather apply the strong Order No. 508 (1995). This is why I propose an amendment to delete the words "and control" in the said paragraph of the opinion.
III. The organisation of the judiciary
Within the judicial system there seems to be necessity for substantive reform, especially concerning the functions and the powers of the prosecutor's office. While some work remains to be done in the field of ensuring the independence of the judiciary and the legal profession, progress made so far in these areas has been considerable. But the continuation of reform regarding the organisation of the judiciary, both the adoption of new legislation and its implementation, is very important.
A. The status of judges
The status of judges is defined in the Federal Law on the Status of Judges in the Russian Federation, dating from 1992, the Federal Law on Changes and Amendments to the said law, signed into law by the President of the Russian Federation on 21 June 1995 and a bill adopted by the State Duma on 20 July 1995 and now pending before the Council of the Federation, on the Judicial System of the Russian Federation.
The President of the Russian Federation has the right to appoint practically all judges (except for the judges of the Constitutional Court, the Supreme Court and the High Arbitration Court, who are appointed by the Council of the Federation - mostly upon the proposal of the President). The Presidents of the High Courts are also involved in the appointment procedures. In effect this means that a lot of power concerning the appointment of judges is concentrated in the hands of very few people, and of political institutions. From May 1994 to date President Yeltsin has appointed approximately 2.800 judges. However, while far from ideal, these provisions do not clearly lack conformity with Council of Europe standards, since the suspension of a judge from all his duties can only be ordered by the Judges' Qualifications Board, i.e. an organ of judicial self-administration.
The independence of the judiciary does not yet seem to be wholly ensured for more prosaic reasons: Due to the general lack of funds, many courts have difficulties in functioning correctly (lack of premises, material aids such as typewriters and computers, etc.). The wages paid to judges have gone up considerably in recent years, and spacious living apartments have been allocated to many of them by the state. But in comparison to other professions, the pay of judges still remains relatively low - judges receive only two-thirds of the salary of state prosecutors on average, according to our information.
Bribery, and threats to life and health, are commonplace methods with which the Russian Mafia tries - and apparently often succeeds - to influence the decisions of the courts. The state can hardly keep up, although it tries to afford some measure of protection to its judges, prosecutors, investigators, bailiffs, etc. through the recent law "on Public Protection for Judges and Officials of Judicial Bodies and Law-Enforcement Agencies". This law allows the judicial officers in question to carry firearms to protect themselves upon application, to have emergency phones installed, or to change their residence, identity and even their appearance.
A comparatively low status of the profession of judge in the public eye contributes to the general problems of the judiciary. For example, while jury trials have been introduced in a number of regions, and the status and powers of judges have been enhanced in recent legislation, it is getting more and more difficult to find judges - and especially jurors - willing to take on the risks. The Russian authorities should be encouraged to continue their efforts in this field, which is one of those where reform has been pursued most actively so far.
B. The prosecutor's office
Like in most other countries of the former Soviet Union (including, for example, Ukraine and Moldova) the prosecutor's office in Russia remains largely unreformed and based on the Communist "prokuratura"-structure. In court, this means that the equality of arms between the prosecution and the defense is not always guaranteed. Outside of court, it means that the prosecutor's office has powers which in most Council of Europe member states have been transferred to administrative courts: the supervision over the legality of all administrative acts.
Far from limiting these questionable powers, the draft federal law "on changes and supplements to the law of the Russian Federation on the prosecutor's office", which was adopted by the State Duma on 7 June 1995, contains a new passage concerning the supervision of the prosecutor's office over the observance of human and civil rights (Articles 26-28 of the draft law). This control cannot (and will not) replace the control exercised by other state authorities over the observance of human and civil rights and freedoms, nor does a public prosecutor's decision prevent a citizen from bringing suit (Article 10 paragraph 1), but the enlargement of the powers of the prosecutor's office is a very worrying development indeed.
Equally worrying is that another new law, the Federal Law on Detention of Individuals Accused and Suspected of Crime, again defines the prosecutor's office as the supervisory body in places of detention (Article 51 of the law). This could well mean that, like in the Soviet past, a detainee has no possibility to address himself to a court (for example, should he be mistreated or illegally kept in prison), only to the prosecutor's office. This is contrary to Council of Europe standards and principles, and must be changed.
The general principle according to which the Prosecutor has the right to issue arrest warrants, instead of a judge, might well be in contradiction to Article 5 para 3 of the European Convention on Human Rights. However, in accordance with the Russian Constitution detained persons can bring a complaint on the lawfulness of their detention to a court. In the process of the reform of the Prosecutor's Office, and with the adoption of the new Code of Criminal Procedure, the Russian Federation should as a matter of course withdraw the right to issue arrest warrants from the Prosecutor's Office.
I thus wholeheartedly support paragraph 6 v. of the draft opinion, including the commitment of the Russian authorities to introduce new laws in accordance with Council of Europe standards on the functioning and the administration of the Prosecutor's Office. So as to be very clear, I would like to add that the role of the Prosecutor's Office should also be changed (as it was added in the opinion on Ukraine's accession), and I will thus propose an amendment to this effect. It is very important that the role of the prosecutor in court be clearly separated from the general supervision of legislative acts or the defense of human and other rights of citizens, which should belong to completely different institutions, like - in the case of the defense of human rights - that of an ombudsman. The decentralisation of the Prosecutor's office is another aim that needs to be pursued.
C. The legal profession
The situation of the legal profession seems to have improved in recent years, but still does not seem to be the best. Allegations have been made that the status of lawyers in court remains unequal to that of the prosecutor, and that lawyers sometimes have problems in getting access to files or to their clients, both before, during and after the trial.
The status of the legal profession does not yet seem to have been comprehensively regulated. According to a draft federal law on the legal profession in the Russian Federation, lawyers will be empowered to represent the legally protected rights and interests of natural and legal persons in any court, at all stages of proceedings and before all state organs, social organisations and other bodies responsible for considering the matter concerned. According to the bill, lawyers may open offices and legal practices either collectively or individually.
The bill also provides for the establishment of "colleges of lawyers", "a fundamental form of organisation of the legal profession", which are "commercial, independent, non-state organisations of professional lawyers voluntarily united for the purpose of providing qualified legal assistance to natural and legal persons" (Article 3). One college of lawyers is to be set up in each component entity of the Russian Federation (republics, regions). The statutes of colleges are to be registered by the Federal Ministry of Justice. The existence, in the context of legislation on associations, of a Federal Union of Lawyers of Russia "for the purpose of defending the professional rights, honour and dignity of lawyers, ensuring high standards of advocacy and maintaining unity and co-operation between lawyers as well as the independence of the legal profession", is also foreseen.
The bill's status is not specified. In particular, it is not known whether the text has received the approval of the legal profession or the Ministry of Justice. However, it would be highly desirable if legislation could be adopted as soon as possible in this field, so as to ensure that the legal profession is adequately protected and can exercise its rights freely. It is especially important that the equality of arms in court be guaranteed (in accordance with Article 6 of the European Convention on Human Rights, pertaining to a fair trial) and that accused persons have full access to defense counsel as from the moment of their arrest. In this context, the defense counsel's access to the file must also be guaranteed, as should be the provision of legal aid for those who could otherwise not afford a lawyer. I thus fully support paragraphs 6 iv. and vi. of the draft opinion adopted by the Political Affairs Committee, which emphasise these requirements.
IV. Criminal law and proceedings
A. Material law
A new criminal code, code of criminal procedure, and code on the execution of sentences are still to be adopted by the Russian parliament. A draft criminal code passed the State Duma on 19 July 1995, but was subsequently rejected by the Council of the Federation and is now being reviewed. This extensive body of law (containing 352 articles) would probably have met most Council of Europe standards, especially since previously vaguely worded offences such as "treason" and "rowdyism and hooliganism" had been rendered more precise. Council of Europe experts are assisting the competent Russian authorities in the drafting or revision of the three codes mentioned, the adoption of which should be a matter of priority, as stipulated in paragraph 6 iv. of the draft opinion.
The draft Federal law on Public Protection of Victims, Witnesses and Other Persons Assisting in Criminal Proceedings, adopted by the State Duma on 20 June 1995, is also relevant in the field of criminal law and proceedings. In addition to the persons mentioned in the heading, the bill would also protect persons who report offences to the authorities and persons accused or found guilty of crimes, as well as their defence lawyers, court-appointed experts, translators and persons who bring associated prosecutions. The bill provides for a number of measures that afford protection, such as personal protection for individuals and their homes, the issue of weapons for the purpose of self-defence, offering a change of identity, taking a person to a different location, etc. (much like the measures envisaged in the law "on Public Protection for Judges and Officials of Judicial Bodies and Law-Enforcement Agencies" mentioned above).
The following rules are relevant with respect to the European Convention on Human Rights:
a. The exclusion of the public from court hearings (section 7 of this bill): There is no express provision in Article 6 para. 1 (second sentence) of the Convention for the possibility of excluding the public on the ground that it is necessary to protect the participants. However, there has long been a basis for this under German law, for example, as a result of the general provision relating to `dangers to public order' contained in � 172 (1a) of the Organisation of the Courts Act.
b. The possibility of questioning witnesses for the prosecution (Article 6 para. 3 (d) of the Convention): This right is restricted owing to the possibility of permitting a witness's personal details not to be disclosed, of questioning a witness with the use of technical equipment and of exempting a witness from appearing at the main trial by reading out the transcripts of statements made (� 6 of the bill). While these restrictions are probably admissible under the Commission's case law, provision should be made for the position of the accused to be improved by allowing witnesses to be asked in what capacity they became aware of the facts testified to and by allowing questions to be put to them concerning their credibility, in particular their relationship with the accused or the injured party. This is especially important taking into account the in many cases already clear predominance of the prosecution in court trials.
The draft Federal Law on the fight against corruption was passed by the State Duma in second reading on 21 November 1995 despite heavy criticism from several Russian political groups, as well as Council of Europe experts. Many terms used in the bill are imprecise, enlarging the field of application of the bill to many so-called "offences" which would not carry any sanctions whatsoever in Council of Europe member states (for example, a university professor accepting an invitation for a symposium abroad without the express approval of his superiors would commit the offence of corruption). I think it is clear that this law needs to be fundamentally revised for it to comply with Council of Europe standards. In fact, it might be better if this law were not to come into force at all, taking into consideration that, in principles, what constitutes a crime should be defined in the new Criminal Code soon to be adopted.
Unfortunately, the same evaluation applies to the Federal Law on operative-search activities, which was signed into law by the President of the Russian Federation on 12 August 1995. In addition to the Code of Criminal Procedure, this law regulates all operative-search activities, such as searching for fugitives of law and missing persons, and collecting information on activities or events which could create a threat to the security of the state, the military, the economy or the ecological system. Article 13 of the law enumerates all the different services which are allowed to make use of these operative-search activities - the list ranges from the Ministry of the Interior, via the federal security services up to the tax fraud squad, border guards and the security service of the President. All these services can act upon their own initiative; the prosecutor's office is the competent organ of surveillance, the courts are only allowed to exercise ex post control. The application of this law should be closely monitored by the Council of Europe, and its revision should be urged upon the Russian authorities.
Also worrying in this field is Presidential Decree No. 1226 "on immediate measures for the protection of the population against banditry and other manifestations of organised crime". This decree provides, amongst others, for the following measures when there is sufficient evidence of an individual's involvement in a gang or other organised criminal group suspected of committing serious crimes: investigations into the financial circumstances and property of the suspects, their relatives and lifetime companions, implementation of investigation activities such as monitoring and searches (and the possibility of making active use of any evidence such gained in a subsequent criminal case), and preliminary detention for a period of up to 30 days.
The latter measure is contradictory to Article 5 paragraphs 3 and 4 of the European Convention on Human Rights and even to the Russian constitution itself (Article 22). However, according to official information, these measures have nonetheless been applied to 15,345 persons in the period between 14 June 1994 and 14 January 1995. According to newest information from the Ministry of the Interior, over 19,000 people have been detained for 30 days on the basis of this decree. It is worrying that the Russian authorities, far from understanding that detaining these people for this extended period of time without charges being made against them and without an arrest warrant (in contradiction even to the Russian constitution, which allows only for a 48 hour-period) is a violation of human rights, see this measure as a success. Only 12,000 of them were later found to be guilty. It is also disquieting that the question of compensation is not yet settled for the 7,000 people detained for 30-days who were later released without charges being brought against them or who were found innocent in court.
This kind of legislation should be brought more into line with Council of Europe principles and standards as soon as possible, in accordance with paragraph 9 xvii. of the draft opinion. Decree No. 1226 violates human rights and the rule of law so flagrantly, however, that I propose an amendment to mention it in this paragraph.
B. The death penalty
In Russia, at least 28 corpus delicti remain punishable by death to date, amongst them crimes against the state (such as espionage), terrorist acts, banditry, aggravated rape, and inciting disorder in correctional institutions. It might be added that this Committee, when it was researching the death penalty in 1994, received two replies from the Russian authorities, one from the Ministry of Justice and one from the Ministry of the Interior. The two replies differed as to which crimes carried the death penalty.
On 1 July 1994, 510 prisoners were awaiting their execution. In 1993, 157 death sentences were handed down, 3 people were executed, and 123 pardoned. In 1994, 160 sentences were handed down, 10 people were executed, and 151 pardoned. (The figures for 1995 are not yet available.) At its meeting in Zurich on 11 December 1995 the Committee decided that Russia should enter into the same commitment as Albania, Moldova and Ukraine regarding the death penalty, and it suggested to the Rapporteur of the Political Affairs Committee to modify his text accordingly, which he did only partially. So as to be in full accordance with this Committee's requirements, paragraph 9 ii. of the draft opinion should read: "[the Russian Federation intends] to sign within one year and ratify within three years from the time of accession Protocol No. 6 of the European Convention on Human Rights on the abolition of the death penalty in times of peace, and with effect from the day of accession to put into place a moratorium on executions".
This commitment is very important, which is why I introduce an amendment to this effect. The only Council of Europe member state which still carries out executions is Lithuania; all other member states are either abolitionist (Moldova is the newest member state to have completely abolished the death penalty), or have introduced a moratorium on executions (Russia's neighbour Ukraine is the newest member state to have introduced such a moratorium). In countries such as Russia, where the rule of law is still weak, and the chance of judicial error therefore much higher, the risk of innocent people being put to death is just too high - and posthumous rehabilitation is a sorry compensation. This is why it is so imperative that - irrespective of public opinion - a moratorium on executions be implemented immediately in Russia, and the death penalty abolished within three years.
C. Arrest, custody and detention
In the field of arrest, custody and detention, there are several problems. There have been a number of allegations of arbitrary arrests connected with over-large police powers. Professor Trechsel, on page 76 of the report of the eminent lawyers, wrote about a statement according to which "there existed a secret internal decree requiring the militia to produce a certain quota of arrests, which was energetically denied on the part of the authorities". Whether this decree exists or not, random arrests do seem to be made in practice.
The new Federal Law on Detention of Individuals Accused and Suspected of Crime, which President Yeltsin signed into law on 15 July 1995, is an important part of the legal order in this field. It regulates the conditions of detention. With regard to the preconditions for arresting a person, reference is made to the written record of the circumstances of the arrest, which is required under the Criminal Code, whilst in the case of detention on remand it refers to the need for a court decision (� 5). However, the law lacks a provision on the need to inform a person promptly of the grounds of arrest and of the nature of the charge (Article 5 para. 2 of the European Convention on Human Rights). While such a provision is to be found in � 123 of the Criminal Code in connection with the arrest of a suspect, it is not clear where this right is laid down as far as detention on remand is concerned. It would thus be advisable to insert the reference to this right into this law as part of the overall legal order.
The law furthermore makes no reference to the right of an accused person to be brought promptly before a judge (required by Article 5 paragraph 3 of the European Convention on Human Rights), only to the right to have a court decide on the lawfulness of detention (Article 5 para. 4 of the Convention). This right of the detained to address himself to a court (instead of the prosecutor's office) on the lawfulness of his detention was already introduced in 1992, but only recently a famous lawyer, Mr S. Pashin, confirmed that many thousands of detainees still do not know how to exercise this right.
In some other fields the law goes beyond the requirements of the Convention, namely in respect of the obligation to inform a family member (� 7 (4)), the obligation to inform persons of their rights and duties while in detention (� 17 (1) (1)) and the express reference to the fact that there are no limits to visits by a defence lawyer (� 18 (1) (1)).
Although there is no express provision in the Convention, � 20 (2) of the new law gives cause for concern. This section permits prisoners' post to be censored without any restrictions with regard to contents and does not even lay down the preconditions for this to be done. Another disquieting fact is that this law is restricted to the rights of persons suspected and accused of committing criminal offences. It therefore does not apply to those arrested for administrative offences (�� 239 ff. of the Code of Administrative Offences). This new law should thus be brought into line with the European Convention on Human Rights in accordance with paragraph 9 xvii. of the draft opinion adopted by the Political Affairs Committee.
On a day-to-day level, one of the main problems remains the overcrowding of pre-trial detention centres, which has led to practically inhumane conditions in the centres of many large cities. There have been allegations that pre-trial detainees even make (wrong) confessions to escape from the terrible conditions in the pre-trial detention centres, since the conditions in many prisons and prison colonies are better. This would be a violation of the rule "Nemo tenetur se ipsum prodere", which is enshrined in Article 14 paragraph 3 g. of the International Covenant on Civil and Political Rights.
The matter is made worse by the fact that one of the main reasons for the bad conditions, the overcrowding, seems in itself to a large extent unnecessary: many suspects are remanded for petty offenses, suspects who in many Council of Europe member states would be freed on bail. Due to the overloading of the criminal justice system, many suspects are also kept in pre-trial detention (illegally) for too-extended periods of time. The problem of overcrowding can thus not solely be solved by building new pre-trial detention centres. It is also necessary to speed up investigation procedures and to exclude petty offences from detention on remand. Alternatives to imprisonment in general - such as fines or community service - should also be considered.
The bad conditions in many pre-trial detention centres have reached such a critical level, that in most cases they might in themselves constitute inhuman or degrading treatment or punishment as prohibited by Article 3 of the European Convention of Human Rights. In my opinion, this problem thus merits to be mentioned in the draft opinion, for which reason I propose an amendment.
There have also been allegations of ill-treatment during police custody and pre-trial detention, mainly to obtain coerced confessions. As a general remark it can be added that the presumption of innocence does not seem to be automatically applied in the Russian Federation; the conviction rates in Russian courts are very high, especially when the defendant has made a confession.
The military style in which prisons and camps are run in some cases seems to lead to a poisoning of the atmosphere between guards and prisoners, if not even to abuse of power by the authorities and all manners of ill-treatment (especially by OMON-troops, special troops of the Ministry of the Interior). This particular deficiency might well be eliminated if the running of the prison system were transferred to a "civilian" Ministry such as the Ministry of Justice - without, of course, militarising that Ministry. The Russian authorities seem to be ambivalent about such a transfer for economic reasons -the administration of the Russian prison system also includes the administration of the prison factories and workshops, a (mostly) profitable enterprise.
There are very few Council of Europe member states, among them Russia's neighbour Ukraine, whose penitentiary systems are run by the Ministry of the Interior. However, all these states have committed themselves to transferring the administration of the prison system to the Ministry of Justice within a certain time-frame. Russia should not be the exception to this rule, especially in view of the problems described in this chapter. I therefore suggest an appropriate amendment. The application of the European prison rules, as contained in paragraph 6 ix. of the opinion, part of Recommendation R (87) 3 of the Council of Europe's Committee of Ministers could make a real difference to the detainees suffering in custody and detention in Russia today.
V. Human rights and fundamental freedoms
A. Human rights situation in Chechnya
The human rights situation in Chechnya remains problematic. Since no international observers were able to go to Chechnya to observe the Republican Presidential and State Duma elections on the spot (the elections were started three days earlier than announced), it is difficult to assess whether the electoral process was free and fair. Serious allegations have also been made that the elections were rigged. Thus the electoral result remains doubtful.
Since mid-December 1995, fighting has again started and escalated in Chechnya. In the context of this report, these new events, such as the Russian attack on Gudermes (in which reportedly 300 civilians were killed) cannot be investigated, and thus not evaluated. Apparently, however, international humanitarian law is again being violated, for example by grid bombardments, heavy artillery shelling and attacks on civilian targets. This is in direct contraction to the promises we received from the Russian authorities in July 1995.
The majority of Chechen fighters have not given up their guns, or their terrorist attacks, either. The recent attack on the Kislyar Hospital in Dagestan, even though it ended relatively peacefully, was an act of terrorism on the Chechen side, which has to be condemned most strongly. All this is contrary to the fragile peace agreement reached six months ago. Chechnya, far from being calm and peaceful, seems to teeter on the edge of war.
The Assembly has demanded and received assurances from the Russian authorities that documented human rights abuses [6] in Chechnya, for example in the filtration camps, will be investigated, and the guilty punished. However, the Council of Europe has received no evidence of action in this field. This is not acceptable. According to newest information published in the (unofficial) newspaper "Moscow news" no. 1 of 1996, crimes and offences committed by the Federal troops in Chechnya in 1995 amounted to over 350, of which 15 were premeditated murders. Reportedly, law-enforcement agencies maintain that only every
fifteenth offence is recorded. The mass violations of human rights which took place in Chechnya especially from December 1994 to June 1995 must be acknowledged by the Russian authorities for what they were, and a non-violent solution to the problem which is acceptable to both parties in the conflict needs to be found. If anything, paragraph 6 vii. of the opinion is too weak in this respect. The Committee on Legal Affairs and Human Rights should look into this matter again in the framework of the monitoring procedure established by Order No. 508 (1995).
B. The security services
The fundamental objectives of the activities of the Russian security services organs, as well as their powers and resources, are set out in the law "on the organs of the Federal Security Service in the Russian Federation". After being signed by the President, it came into force on 12 April 1995. With effect from that date the Federal Counter-Intelligence Service (FSK) of the Russian Federation became the Federal Security Service of the Russian Federation (FSB). This change of title was officialised by a decree of 23 June 1995 of the President "on initial measures for the implementation of the federal law on the organs of the Federal Security Service in the Russian Federation".
The law sets two fundamental objectives for the FSB's activity:
a. counter-intelligence, defined as "the activity of the Federal Service's organs, within the limits of its powers, for the purpose of detecting, preventing and halting the intelligence and other activities of the special services and organisations of foreign states, as well as of individuals, aimed at undermining the security of the Russian Federation".
b. the combating of crime: "the organs of the Federal Security Service shall carry out operational searches in order to detect, prevent, halt and expose espionage, terrorist activity, organised crime, corruption, unlawful trade in arms and drugs, smuggling and other offences, and carry out the inquiries and preliminary investigations assigned to them by the law, as well as for the purpose of detecting, preventing, halting and exposing the activities of illegal armed formations, criminal groups, individuals and associations whose aim is to change the constitutional system of the Russian Federation by force".
The law invests the FSB both with powers that are undoubtedly connected with security (counter-intelligence, espionage, etc.) and with powers which are more connected with ordinary law: organised crime, corruption, smuggling. Furthermore, the list of offences appearing in the law is not restrictive. The FSB has thus taken over the operational-search powers which used to belong to the KGB and which the so-called Counter-Intelligence Service regretted not having acquired, such as the right to run its own pre-trial detention centres and criminal investigations.
It can be seen as a great danger to democratic society and the rule of law that the security service FSB has nearly equivalent powers to that of the old Soviet KGB. The staff has also remained mostly the same: 1,520 persons work in the central administration, and 77,640 in the various departments. In addition, Article 24 of the law makes the General Procurator of the Russian Federation and the procurators delegated by him - and not the courts - responsible for monitoring the application of the Russian Federation's law by the Federal Security Service's organs, and it excludes from the scope of the Prokuratura's surveillance intelligence concerning persons assisting or having assisted the Federal Security Service's organs on a confidential basis as well as intelligence concerning tactics, methods and resources for carrying out the activities of the Service's organs. It might be kept in mind that the Prokuratura's surveillance in the past did not prove to be very effective vis-�-vis the KGB, either.
Some of the FSB's powers in the crime fighting field are clearly so open to possible abuse that they will have to be limited so as to be in conformity with Council of Europe standards. (In particular, the FSB should not be allowed to possess and run its own pre-trial detention centres, nor to run its own criminal investigations.) It would be best if the FSB's powers were limited to the purely security field and to the fight against international organised crime. To intensify the fight against national organised crime and corruption, it would seem preferable to strengthen the personnel of the Ministry of the Interior. While such a move would undoubtedly be unpopular with the FSB's leaders, I cannot see another possibility, and thus fully support paragraph 9 xv. of the draft opinion adopted by the Political Affairs Committee.
C. Military jurisdiction and the treatment of soldiers and recruits in the Russian Army
After intensive consultations on the subject of military jurisdiction, the following facts were established: In Russia, there currently exist 160 military courts, which deal with crimes committed by servicemen (of the Army, the troops of the Ministry of the Interior and Federal Security Service troops), and with their administrative complaints. The courts deal with 12-14.000 criminal cases a year, and 13-15.000 administrative complaints. Of the latter, about 20% concern alleged ill-treatment of servicemen. In the courts 700 military judges are employed, linked with the Ministry of Justice. Military prosecutors also exist; they are accountable to the General Prosecutor's Office. Judges and prosecutors have military ranks, wear military uniforms and are formally servicemen, but are not accountable to their military superiors. Special military defense lawyers, however, do not exist. The military courts can sentence delinquents to punishments according to the civilian legislation (e.g. prison terms), to disciplinary arrest or to service in a disciplinary battalion. Special military prisons or pre-trial detention centres do not exist.
According to information received from NGOs, especially the different Committees of Soldiers' Mothers, ill-treatment in the armed forces is wide-spread, sometimes even leading to the suicide or the murder of servicemen. The NGOs claimed there were 4-5.000 deaths in the army (outside of military conflict areas such as Chechnya) every year, most of them unexplained. According to their complaints, it was practically impossible for relatives to have the cause of death investigated, and the guilty punished. According to the General Prosecutor's Office which is responsible for investigating deaths in the Army, in 1994 there were 432 suicides. Despite intensive efforts on my behalf, I was not provided with the figures for deaths by accident, manslaughter and murder in the Army.
I am very concerned about both the reported ill-treatment and the high rate of death in the Russian armed forces. Proper and detailed investigation is needed into all such cases, and the incidents of ill-treatment and unexplained deaths should be reduced, if not eliminated as a matter if highest priority. For this reason I propose an amendment after paragraph 9 xvi of the draft opinion to this effect.
D. The freedom of expression
In general, it can be said that the freedom of expression is guaranteed in the Russian Federation. Article 29 of the Russian constitution expressly forbids censorship of the media. Russia has developed a diverse media environment, with thousands of newspapers and a growing number of television stations. Journalists and publishers still face a large number of problems - financial ones are the most important, but violence and political intimidation exist, too. These problems take their toll on the professionalism of the media; many newspapers, for example, have become highly politicised. However, the war in Chechnya showed that the government was unable to restrain the media from reporting independently in crisis situations - and that should be the best test of all for the independence of the media.
E. The freedom of association
The main law in this field is the draft Federal Law "on rallies, mass meetings, demonstrations, marches and picketing", which was adopted by the State Duma on 9 June 1995, then, after being referred back, again on 21 July 1995. By 20 November 1995 it had not yet been promulgated. Article 1 of the bill specifies that the holding of public events - defined as rallies, mass meetings, demonstrations, marches and picketing or a combination thereof - does not require the permission of organs of executive power, organs of local self-government or their officials. By guaranteeing the right of citizens to organise and conduct public events and participate therein, the bill would contribute to the implementation of that right through "the creation of conditions and the provision of assistance for citizens by organs of executive power and their officials in connection with the conduct of public events, by the making available to citizens free of charge, of streets, squares, parks, public gardens and other public areas, and the dissemination of relevant information by the mass media".
However, the bill subjects the organisation of public events to a prior declaration. This declaration would have to be made not more than fifteen days and not less than seven days before the date planned for the event, which is no doubt excessive if it is applied to all public events, whatever their venue and scale. It would be very good if this question could be clarified before the final adoption of the bill. It must remain possible to hold spontaneous demonstrations.
F. The freedom of movement
As mentioned in Chapter II, the freedom of movement in the Russian Federation, though constitutionally guaranteed, is often restricted by the administrative officials practising the outlawed Soviet "propiska" (or residence-permit system), especially in the big cities such as Moscow and St. Petersburg. We have been told that this system might soon be replaced by a different one, according to which the issue of residence permits for newcomers might be conditional upon the purchase of housing in the respective city. This would, possibly, not be an appropriate instrument with which to restrict the freedom of movement guaranteed in the Russian constitution and Protocol no. 4 to the European Convention on Human Rights. I do not want to go into any more detail here, since I find paragraph 6 viii. of the draft opinion a sufficiently firm commitment on the part of the Russian authorities.
Similarly, the restrictions on travel abroad placed on persons allegedly aware of "State secrets" - according to information provided by non-governmental organisations, several hundred persons, according to the Russian authorities twenty-eight - are dealt with in paragraph 9 xiii. of the draft opinion adopted by the Political Affairs Committee.
G. The freedom of religion
There have been no allegations that the freedom of religion is threatened or limited by the Russian State. On the contrary, the Law on religious activities secures wide freedoms in this field. However, there seem to be some problems concerning the return of property, which seems to be made difficult sometimes by officials on the local level.
On the one hand, there have been allegations that the somewhat dominant position of the Russian Orthodox Church obstructs the freedom of other confessions. On the other hand, the Russian Orthodox Church itself complains that there is an unfair competition between the "imported, non-traditional Western confessions", which can provide humanitarian help and buy airtime on TV and radio, and impoverished parishes of the Russian Orthodox Church. All parties to this dispute should realise that the freedom of religion and the freedom of conscience necessitate a certain tolerance on the part of all religious confessions towards each other. The only exception to this principle are sects of a doubtful character.
VI. Minority rights and local self-government
Article 12 of the Constitution of the Russian Federation of 12 December 1993 lays down the principle of local self-government without specifying its scope: "Local self-government shall be recognised and guaranteed in the Russian Federation. Local self-government shall be independent within the limits of its competence. Organs of local self-government shall not form part of the system of organs of state power". The Constitution assigns to the Russian Federation and its component entities joint jurisdiction for "the establishment of general principles governing the organisation of the system of organs of state power and local self-government". On 28 August 1995, on the basis of this jurisdiction, the federal authorities adopted the law of the Russian Federation "on the general principles governing the organisation of local self-government in the Russian Federation", which came into force on 1 September 1995.
The adoption of this law introduced legal rules at three levels in the sphere of local self-government: the federal one, the level of each component entity of the Federation, and the level of each local authority. Article 12 of the law specifies the scope of local self-government: "Local self-government shall be implemented throughout the territory of the Russian Federation in urban and rural settlements and in other territories. The territories of municipal formations - towns, settlements, large villages, districts (uyezds), rural districts (volosts, rural soviets) and other municipal formations -shall be established in accordance with the laws of the component entities of the Russian Federation, having regard to historical and other local traditions".
However the law does not organise co-operation between municipalities, nor between municipalities and administrations of the Federation's component entities. It also limits the application of the concept of local self-government to the highest level of administration, is vague about the external economic activities of local authorities (Article 34), and, above all, leaves aside the fiscal system, a fact which led the President of the Russian Federation to advocate, in a decree of 17 September, the postponement to December 1996 of the elections scheduled by the law (Article 58) to be held within six months following its entry into force (1 September). As a result, there is at present a dual electoral timetable deriving from two texts, both signed by Boris Yeltsin: a law of 28 August 1995 and a decree of 17 September 1995.
On 8 December 1995 the first (constitutive) Congress of the Union of Local Authorities of Russia is to be held. The Congress should be the pre-eminent partner of the Council of Europe's Congress of Local and Regional Authorities for pursuing the dialogue already under way on problems concerning the planning and implementation of local self-government. In this way, the lacunae in the present law might be filled.
A bill "on the defense of national minorities' rights" is currently pending before the State Duma, and is being analysed by Council of Europe experts. Until this analysis has been received, I cannot evaluate the Bill or its implications on national minorities' rights in the Russian Federation [7].
VII. Other problem areas
There are two other problem areas which call for attention: One is the recent (unanimous) ratification by the State Duma of the CIS Convention on Human Rights, and the other is the penchant of the Russian government to choose policy options not open to them under international law, especially in crisis situations. In this regard, I find it absolutely necessary that the Russian authorities firmly commit themselves to observe international law, especially international humanitarian law, in any future conflicts, be they internal or external. This commitment is included in paragraph 9 vii. of the draft opinion. The Russian authorities should fully fulfil their obligations also, for example, under the Geneva Convention of 1951 relating to the Status of Refugees and its 1967 New York Protocol.
Concerning the CIS Convention on Human Rights, it would be desirable that the Russian Federation give up this idea altogether. Since the Duma has, however, already ratified the Convention, it is absolutely necessary that its application will not in any way interfere with the procedure and guarantees of the European Convention on Human Rights. Every person on the territory of the Russian Federation must have the complete and unrestricted right and possibility to address himself or herself directly to the Strasbourg control organs, without first having to exhaust the "remedy" of the CIS control organs. In addition, since the CIS Convention does not confer as many rights as the European Convention does, and since its control mechanism is much weaker, the Council of Europe Convention must undoubtedly take preference. This is provided for in paragraph 9 xiv. of the draft opinion.
Several motions for the return of property confiscated by the Soviet Union and never returned to Council of Europe member states have been made. The explanatory memorandum of the Political Affairs Committee mentions this question very briefly in its paragraph 99 and it is dealt with in sub-paragraph 9 xi and 9 xii of the draft Opinion. The Committee on Legal Affairs and Human Rights believes that these problems should be solved properly and rapidly between Council of Europe member states. A special report on this matter might prove to be necessary, though.
VIII. Conclusion and recommendation
The Committee on Legal Affairs and Human Rights thinks the only conclusion that can be drawn from the above considerations is that, for the time being, considerable deficits remain in the application of laws and regulations and the observance of human rights. In this respect, the Russian Federation cannot be regarded as a State based on the rule of law. Neither is the full observance of human rights guaranteed - the documented human rights abuses in Chechnya are the best example, but violations of human rights are not restricted to that Republic. While the freedom of expression and the freedom of association are relatively well-protected, the freedom of movement is restricted and basic rights of those suspected accused of and/or detained for criminal or administrative offences are painfully missing. Progress towards the rule of law and the observance of human rights has been made in the last few years, but it is often frustratingly slow, and sometimes even goes into reverse (as the events in Chechnya and the powers of the Federal security services demonstrate).
From a legal affairs and human rights point of view, applying strict criteria, the Committee must thus conclude that the Russian Federation does not yet fulfil the conditions of membership as laid down in Article 3 and 4 of the Statute of the Council of Europe. Having come to this conclusion the Committee on Legal Affairs and Human Rights has fulfilled the instructions of the Assembly. The question could, however, be asked whether the accession of the Russian Federation might in itself help to create conditions in conformity with Council of Europe standards, on the one hand through the commitments to be entered into by Russia upon accession and the subsequent monitoring procedure, and on the other hand, as a result of the mandatory judgments of the European Court of Human Rights. This consideration and other political arguments might speak in favour of Russia's accession to the Council of Europe at this point in time. Thus the final decision would depend on whether a critical assessment of the current legal and human rights situation or a political evaluation of the chances and perspectives for improvement of this situation following the admission should prevail.
IX. Suggested Amendments
The Assembly is asked to support the following amendments tabled on behalf of the Committee on Legal Affairs and Human Rights to the draft opinion on Russia's request for membership of the Council of Europe contained in Doc. 7443:
Amendment No. 1
In paragraph 6 v., add the following words before "the functioning":
"the role,".
Amendment No. 2
In paragraph 6 v., add the following words after "the Procurator's Office":
"(with reference to paragraphs 17-21 of the Committee on
Legal Affairs and Human Rights' opinion),"
Amendment No. 3
In paragraph 6, replace "able and willing" with "is clearly willing and will be able in the near future".
Amendment No. 4
In paragraph 6, add at the end of sub-paragraph ix. the following words:
"in particular, the practically inhuman conditions in many pre-trial detention centres will be ameliorated without delay;"
Amendment No. 5
In paragraph 6, add a new sub-paragraph after sub-paragraph ix.:
"the responsibility for the prison administration and the execution of judgments will be transferred to the Ministry of Justice before the end of 1998;"
Amendment No. 6
In paragraph 7, delete the words "and control".
Amendment No. 7
In paragraph 8, add the following sentence at the end of the paragraph:
"In the context of this joint programme, particular attention should also be paid to support for and the strengthening of non-governmental organisations in the field of human rights and to the establishment of a civil society."
Amendment No. 8
In paragraph 9, sub-paragraph ii., replace "in the meantime" with "with effect from the day of accession".
Amendment No. 9
In paragraph 9, add a new sub-paragraph after sub-paragraph xi.:
"to return without delay the property of the churches;"
Amendment No. 10
In paragraph 9, subparagraph xv., add at the end of the sub-paragraph:
"in particular, the right of the FSB to possess and run pre-trial detention centres should be withdrawn".
Amendment No. 11
In paragraph 9, add a new sub-paragraph after sub-paragraph xvi.:
"to reduce, if not eliminate, incidents of ill-treatment and deaths in the armed forces;"
Amendment No. 12
In paragraph 9, add the following words at the end of sub-paragraph xvii.:
"amongst other legislation, presidential decree no. 1226 should be revised without delay;"
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 6640 and Reference No. 1796 of 30 June 1992
Opinion approved by the committee on 13 January 1996
Secretaries to the committee: Mr Plate, Ms Chatzivassiliou and Ms Kleinsorge
Footnote: 1 See Doc 7443.
Footnote: 2 By the Committee on Legal Affairs and Human Rights.
Footnote: 3 The expertise is available (partly in English, partly in French) from the Secretariat of the Committee on Legal Affairs and Human Rights upon request.
Footnote: 4 Professor Lesage was unfortunately not able to participate, due to a traffic accident.
Footnote: 5 A system of residence permits dating from Soviet times.
Footnote: 6 See the report of the Sub-Committee on Human Rights, reproduced as an Appendix in Assembly doc. 7384.
Footnote: 7 Due to his traffic accident, Professor Lesage could not provide the expertise in time for the Committee's meeting in Moscow.