На 25 януари 2016г. ПАСЕ ратифицира пълномощията на делегациите на националните парламенти на страните - членки, които са валидни за сесията през 2016г.
Руската Дума не представи своя делегация, вероятно поради опасения, че пълномощията и ще бъдат оспорени за трети път - след 2014 и 2015г. Русия имаше делегация в ПАСЕ, но тя беше без право на глас и с ограничение да не членува в някои от органите на Асамблеята.
Кореспонденцията на Руската Дума с ПАСЕ е публикувана на този сайт тук:
Така по свое желание Русия се лиши от представителство в ПАСЕ - за първи път от 20 години.
 |
| Отговорът на г-жа Ан Брасьор, Президент на ПАСЕ до 25 януари 2016г. |
По този начин не се стигна до оспорване за трети път на правомощията руската делегация и не се проведоха дебати по ситуацията с руско-украинския конфликт.
Косвено този въпрос беше споменат отново в резолюцията свързана със санкциите срещу парламентаристи.
Датата на която стана това - 25 януари 2016г., бележи точно 20-тата годишнина от гласуването в ПАСЕ за приемането на Руската Федерация за член на Съвета на Европа - 25 януари 1996г.
По това време аз бях заместващ-член в делегацията и нямах възможност да присъствам на сесията. Не бях командирован от Председателя на Народното събрание Благовест Сендов. А и нямах право на глас в присъствието на титулярите.
В уикенда преди сесията, обаче в един курорт в планината Шварцвалд, която се намира срещу Страсбург - отсреща през река Рейн, се проведе общ семинар за изработване на позиция по искането на Русия за членство, в който участваха групите на Европейската Народна Партия и на Европейските демократи - т.е. на европейската десница.
Като Вицепрезидент (тогава) на групата на Европейските демократи в ПАСЕ, ми бяха поети разходите за участието в семинара в който участвах от групата. Генерален секретар на групата тогава беше г-жа Барбара Норд, а Президент Халгрим Берг от Норвегия.
Общото решение на двете групи беше, че Русия не е изпълнила минималните изисквания за членство в Съвета на Европа и не би могла да бъде приета в този момент.
Реши се, че ще се направят редица конкретни препоръки, които когато се изпълнят, въпросът ще бъде подложен на разглеждане.
Вечерта преди откриването на сесията в неделя обаче, делегациите на Германия, Франция и Великобритания са били подложени на силен натиск от премиерите на своите страни Хелмут Кол и Дон Мейджър (а в случая с Франция - от Президента на Републиката Франсоа Митеран) да гласуват "за" по приемането на Русия за член на Съвета на Европа още на тази сесия.
Така при гласуването редица от членовете на двете групи при поименното гласуване на становището на ПАСЕ гласуваха "за".
Аз си позволих да остана в Страсбург и в понеделник, за собствена сметка и така присъствах на началото на тази сесия.
В Страсбург отседнах в най-евтиния възможен хотел - до гарата.
Нямах средства за повече.
Поради това, във вторник трябваше да се върна и не присъствах на гласуването.
Тогава по искане на естонската депутатка, а по-късно Министър на външните работи на Естония от либералната група, Кристина Оюланд и група депутати се проведе поименно гласуване.
Покойният лорд Джефри Финсберг, консерватор, Вицепрезидент и бивш Президент на ПАСЕ, гласувал, като при извикването на името му за гласуване станал и дори отговорил на руски език - "Да!".
Резултатите от това гласуване не можеха да се намерят в интернет до днес.
Това е така, защото през 1996г. вече макар вече да съществуваше интернет, повечето от институциите нямаха още свои сайтове.
Ето защо, днес публикувам на моя блог, гласуването по приемането на Русия в Съвета на Европа.
При гласуването българската делегация тогава нямаше единно становище.
Филип Боков и Иван Генов (БСП), Елена Поптодорова(тогава - ЕЛ) и Яшо Минков (БББ) са гласували "за", г-н Васил Гоцев(СДС) и г-н Юнал Лютфи(ДПС) са се въздържали, а г-жа Надежда Михайлова, която тогава присъстваше на сесията, не е взела участие в гласуването, защото като заместващ-член не е имала право да гласува в присъствието на титуляра.
(Тогава СДС имаше трима представители в ПАСЕ - Васил Гоцев - титуляр и двама заместващи членове Надежда Михайлова и Лъчезар Тошев. Делегацията на Народното събрание в ПАСЕ се състои от 12 членове - 6 титуляри и 6 заместващи членове.)
От 6 възможни гласа от България, за приемането на Русия в Съвета на Европа са били дадени 4.
СДС и ДПС не са подкрепили приемането на Русия в Съвета на Европа.
(По време на членството ми в групата на консерваторите (EDG) 1992-1997г. аз бях неин Вицепрезидент от 1994г. (От юни 1997г. станах член на групата на ЕНП, а СДС пое курс към членство в ЕНП, което стана факт през 1998г.).
Ето протокола от гласуването тук:
AAPV7.96 AS
(1996) PV 7
1403-25/1/96-10-E
1996
SESSION
(First
Part)
SEVENTH
SITTING
Thursday
25 January, 1996 at 3 pm
MINUTES
OF PROCEEDINGS
Mr van
der Linden, Vice-President of the Assembly, took the Chair at 3.03
pm.
1. MINUTES
The
minutes of proceedings of the previous sitting not having been
distributed, their adoption was deferred.
2. ATTENDANCE
REGISTER
The names
of the Representatives and Substitutes who signed the attendance
register are given in the Appendix.
3. RUSSIA'S
REQUEST FOR MEMBERSHIP OF THE COUNCIL OF EUROPE
The
debate was resumed.
Speakers:
MM Masseret, Gricius, Lord Finsberg, MM Büchel, Bergquist.
Mrs
Lentz-Cornette, Vice-President of the Assembly, took the Chair
in
place of Mr Van der Linden.
Speakers:
MM Szalay, Moeller (on a point of order), Lipkowski, Caputo,
Marmazov, Zhirinovsky, Thoresen, About, Guenov, Bühler, Andulatipor,
Jurgens, Mrs Jäätteenmäki, MM Pozzo, Briane, Dionisi, Bauer,
Elo.
Mrs
Fischer, President of the Assembly, took the Chair
in
place of Mrs Lentz-Cornette.
Speaker:
Mr Árnason.
The list
of speakers was interrupted.
Mr
Seitlinger, Chairman of the Committee on Relations with European
Non-Member Countries, Mr Bindig, Rapporteur for an opinion of the
Committee on Legal Affairs and Human Rights and Mr Muehlemann,
Rapporteur, and Mr Bársony, Chairman of the Political Affairs
Committee, replied to the debate.
The
debate was closed.
Mr
Columberg moved to refer the report back to the Political Affairs
Committee under Rule 33 of the Rules of Procedure.
Speaker:
Lord Finsberg.
The
motion was defeated.
The
Assembly considered the draft opinion contained in Doc. 7443.
The
President announced that the amendments would be taken in the
following order:
19, 17,
32, 2, 3, 4, 5, 6 (and sub-amendment), 20, 7, 8, 9, 14, 21, 22, 26,
33, 1, 16, 27, 23, 10, 24, 25, 28, 34, 29, 11, 12 (and
sub-amendment), 13, 31, 30, 18.
The
President announced that Amendment No. 15 had been withdrawn.
Its terms were the same as those of the motion for an order to be
moved following the vote on the draft opinion.
An
amendment (No. 19) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 3, to replace the words "conflict in
Chechnya" by the words "colonial war in Chechnya".
Speakers:
MM Martínez, Muehlemann (Rapporteur of the Political Affairs
Committee).
The
amendment was not agreed to.
An
amendment (No. 17) was proposed by Mr Speroni, in the draft
opinion, at the end of paragraph 3, to add a new sentence worded as
follows:
"However,
due to the obstinate refusal of the Russian Government to recognise
the right of the Chechnyan people to self-determination, this search
for a solution has so far failed to bring the armed conflict to an
end;".
Speakers:
MM Galanos, Muehlemann (Rapporteur).
The
amendment was not agreed to.
Another
amendment (No. 32) was proposed by Mrs Err, in the draft
opinion, after paragraph 3, to insert a new paragraph worded as
follows:
"The
Assembly has followed the events in December 1995 in Gudermes and the
recent events in Pervomayskoye with deep concern. It firmly condemns
the taking of hostages as an act of terrorism and a flagrant
violation of human rights, which no cause can justify. At the same
time, it considers that the Russian authorities did not show
sufficient concern for the safety of the hostages. The apparent
indiscriminate use of force cost the lives of many innocent people
and violated international humanitarian law. The Chechnyan conflict
cannot be resolved by the use of force. There will be no peace in
the region, nor an end to terrorist attacks, without a political
solution, based on negotiation and on European democratic values".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 2) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, in
paragraph 6, to delete the words "able and willing" and to
insert the words:
"clearly
willing and will be able in the near future".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 3) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, in
paragraph 6.v, before the word "functioning" to insert the
word "role".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
An
amendment (No. 4) was, with the leave of the Assembly,
withdrawn.
Another
amendment (No. 5) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, at
the end of paragraph 6.ix, to add the following words:
"in
particular, the practically inhuman conditions in many pre-trial
detention centres will be ameliorated without delay;".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 6) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion,
after paragraph 6.ix, to add a new sub-paragraph worded as follows:
"the
responsibility for the prison administration and the execution of
judgments will be transferred to the Ministry of Justice before the
end of 1998;".
A
sub-amendment was proposed by Mr Bloetzer, to leave out the words
"before the end of 1998".
Lord
Finsberg proposed an oral sub-amendment in place of the
sub-amendment, to leave out the words "before the end of 1998"
and replace them with the words "as soon as possible".
Speakers:
MM Muehlemann (Rapporteur), Bársony, Novák (on points of order).
The oral
sub-amendment proposed by Lord Finsberg was agreed to.
Speakers:
Mrs Ojuland, Mr Galanos.
The
amendment, as amended, was agreed to.
Another
amendment (No. 20) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 6, after sub-paragraph x, to insert a new
sub-paragraph, worded as follows:
"the
Russian Federation will assist persons formerly deported from the
occupied Baltic States or those belonging to the descendants of
deportees, to return home according to special repatriation and
compensation programmes which must be worked out;".
Speakers:
MM Muehlemann (Rapporteur), Blaauw (on a point of order).
The
Assembly voted by sitting and standing.
The
amendment was agreed to.
Speakers:
MM Špaček, Speroni (on points of order).
Another
amendment (No. 7) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, in
paragraph 7, to delete the words "and control".
Speakers:
Lord Finsberg, Mr Muehlemann (Rapporteur).
The
amendment was not agreed to.
Another
amendment (No. 8) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, at
the end of paragraph 8, to add the following new sentence:
"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."
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Speaker:
Sir Andrew Bowden (on a point of order).
Another
amendment (No. 9) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, in
paragraph 9.ii, to delete the words "in the meantime" and
to insert the words:
"with
effect from the day of accession".
Speakers:
MM Špaček, Muehlemann (Rapporteur).
The
amendment was agreed to.
Amendment
No. 14 fell.
Another
amendment (No. 21) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 9, sub-paragraph vii, to leave out the words
"to seek".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 22) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 9, sub-paragraph vii, at the end, to insert the
words "rejecting resolutely any forms of threat to use force
against its neighbours".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 26) was proposed by Mrs Veidemann, in the draft
opinion, in paragraph 9, after sub-paragraph viii, at the end, to
insert the words "abiding by the existing international
treaties".
Speakers:
MM Galanos, Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 33) was proposed by Mr Speroni, in the draft
opinion, after paragraph 9.viii, to insert a new sub-paragraph worded
as follows:
"to
settle internal disputes, honouring the principle of peoples' right
to self-determination".
Speakers:
Lord Finsberg, Mr Muehlemann (Rapporteur).
The
amendment was not agreed to.
Another
amendment (No. 1) was proposed by Mr Diacov, in the draft
opinion, in paragraph 9.ix, after the words "to ratify" to
insert the following words:
"in
a period of six months after the accession of Russia to the Council
of Europe".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Speaker:
Lord Finsberg (on a point of order).
Another
amendment (No. 16) was proposed by Mr Atkinson, on behalf of the
Committee on Relations with European Non-Member Countries, in the
draft opinion, after paragraph 9.x, to add a new sub-paragraph worded
as follows:
"to
continue to negotiate with the religious communities on the return of
property confiscated since the 1917 Revolution".
Speakers:
MM Schwimmer, Muehlemann (Rapporteur).
The
amendment was not agreed to.
Another
amendment (No. 27) was proposed by Mr Van der Maelen, in the
draft opinion, in paragraph 9, sub-paragraph xi, to delete the word
"archives".
Speakers:
Sir Russell Johnston, Mr Muehlemann (Rapporteur).
The
amendment was not agreed to.
Another
amendment (No. 23) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 9, sub-paragraph xi, at the end, to insert the
words "in respective areas including Caucasus".
Speakers:
MM Galanos, Muehlemann (Rapporteur).
The
amendment was not agreed to.
Another
amendment (No. 10) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion,
after paragraph 9.xi, to insert a new paragraph worded as follows:
"to
return without delay the property of the churches".
Mr
Bársony proposed an oral sub-amendment, to leave out the word
"churches" and insert the words "religious
institutions".
Speakers:
MM Galanos, Gricius, Muehlemann (Rapporteur), Kovakas.
The
sub-amendment was agreed to.
The
amendment, as amended, was agreed to.
Another
amendment (No. 24) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 9, after sub-paragraph xi, to insert a new
sub-paragraph, worded as follows:
"to
denounce as wrong the concept of two different species of foreign
countries, treating some of them as a zone of special influence
called 'near abroad'".
Speakers:
MM Solonari, Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 25) was proposed by Mr Landsbergis, in the draft
opinion, in paragraph 9, sub-paragraph xii, to delete the words "to
seek".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 28) was proposed by Mr Van der Maelen, in the
draft opinion, at the end of paragraph 9, sub-paragraph xii., to add
the following words:
",
in particular the archives transferred to Moscow in 1945;".
Speaker:
Sir Russell Johnston, Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 34) was proposed by Mr Severin, in the draft
opinion, after paragraph 9.xii, to insert a new sub-paragraph worded
as follows:
"to
implement the necessary measures in order to facilitate the
repatriation of all those inhabitants of the territories occupied as
a result of the Molotov-Ribbentrop Pact, who were deported after
1940, and to reimburse them for the damages suffered in connection
with the said deportation;".
Speaker:
Mr Bársony (Chairman of the Political Affairs Committee).
The
amendment was not agreed to.
Another
amendment (No. 29) was proposed by Mr Valkeniers, in the draft
opinion, in paragraph 9, sub-paragraph xiii, to insert the following
words after the words "state secrets":
"and
to facilitate the consultation of archives kept in the Russian
Federation".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 11) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, at
the end of paragraph 9.xv, to add the following words:
"in
particular, the right of the Federal Security Service (FSB) to
possess and run pre-trial detention centres should be withdrawn.".
Speaker:
Mr Prokes.
The
amendment was agreed to.
Another
amendment (No. 12) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion,
after paragraph 9.xvi, to insert a new sub-paragraph worded as
follows:
"to
reduce, if not eliminate, incidents of ill-treatment and deaths in
the armed forces;".
A
sub-amendment was proposed by Mr Bloetzer, at the end, to add the
words:
"outside
military conflicts".
Speakers:
MM Speroni, Muehlemann (Rapporteur).
The
sub-amendment was agreed to.
Speakers:
MM Kovalos, Muehlemann (Rapporteur).
The
amendment, as amended, was agreed to.
Another
amendment (No. 13) was proposed by Mr Bindig, on behalf of the
Committee on Legal Affairs and Human Rights, in the draft opinion, at
the end of paragraph 9.xvii, to add the following words:
"amongst
other legislation, presidential decree no. 1226 should be revised
without delay;".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 31) was proposed by Mrs Aguiar, in the draft
opinion, at the end of paragraph 9, to insert a new sub-paragraph
worded as follows:
"to
strictly respect the provisions of international humanitarian law,
including in cases of armed conflict on its territory".
Speakers:
MM Bársony (Chairman), Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
Another
amendment (No. 30) was proposed by Mrs Aguiar, in the draft
opinion, at the end of paragraph 9, to insert a new sub-paragraph
worded as follows:
"to
co-operate in good faith with international humanitarian
organisations and to enable them to carry on their activities on its
territory in conformity with their mandate".
Speaker:
Mr Muehlemann (Rapporteur).
The
amendment was agreed to.
An oral
amendment (oral Amendment A) was proposed by Mr Schwimmer, in the
draft opinion, after paragraph 9.xx, to add a new sub-paragraph as
follows:
"xxi. to
confirm the commitments indicated in paragraphs 6 and 9 in a written
form signed by the Russian authorities.".
Speakers:
MM Bársony, Schwimmer (on points of order).
Objection
being taken, this was not permitted.
Speaker:
Mr Muehlemann (on a point of order).
Objection
being taken to another oral amendment (oral Amendment B), in the
draft opinion, in paragraph 10, to leave out the words: "indicated
above: i. invite the Russian Federation" and to insert the
words:
"indicated
above, and as soon as a process to peaceful solution in Chechnya is
achieved:
i. invite
the Russian Federation in due course",
it
was not permitted.
Speaker:
Mr Bársony (on a point of order).
Another
oral amendment (oral Amendment C) was proposed by Mr Berg, in the
draft opinion, in paragraph 10, to replace sub-paragraph iii with the
following words:
"guarantee
that the Organisation's means and capabilities, in particular those
of the Assembly and of the Human Rights Institutions, are increased
to meet the consequences of these decisions".
Speakers:
MM Schieder, Bársony, Schwimmer (on points of order).
The
amendment was agreed to.
Another
amendment (No. 18) was proposed by Mr Schieder, in the draft
opinion, at the end of paragraph 10.iii, to add the following words:
"and
refrain from using the Russian Federation's accession to reduce the
contributions of states which are already members.".
The
amendment was agreed to.
At the
request of Mrs Ojuland and at least nine other members, the Assembly
proceeded to vote by roll-call on the draft opinion.
Votes
cast: 214
In
favour: 164
Against: 35
Abstentions:15
The draft
opinion, as amended, was accordingly adopted (Opinion
No. 193).
The
President congratulated the Russian delegation.
Speaker:
Mr Lukin.
Mr
Pahor, Vice-President of the Assembly, took the Chair in place of Mrs
Fischer
The
Assembly considered the motion for an order on the creation of an Ad
hoc Committee on Chechnya (Doc. 7475).
The
President informed the Assembly that a small change should be made to
the printed version of the motion for an order. In the last line,
the words "to the Assembly" should be replaced by the word
"back".
The
motion was agreed to (Order
No. 516).
4. DATE,
TIME AND ORDERS OF THE DAY OF THE NEXT SITTING
The next
public sitting was fixed for Friday 26 January at 11 am with the
following orders of the day:
1. Economic
situation in Belarus, Russia and Ukraine
- Presentation
of the report from the Committee on Economic Affairs and Development
on the economic situation in Belarus, Russia and Ukraine (Doc. 7453)
by Mr Blaauw and Mr Novák, Rapporteurs.
- Debate
and vote
on the draft resolution contained in Doc. 7453.
2. Animal
welfare and transport of livestock in Europe
- Presentation
of the report from the Committee on Agriculture and Rural Development
on animal welfare and transport of livestock in Europe (Doc. 7427)
by Mr Michels, Rapporteur.
- Debate
and votes
on the draft recommendation contained in Doc. 7427 and amendments.
3. Appointment
of members of the Standing Committee
The
sitting was closed at 7.46 pm.
The
Russia's Development and the possible affiliation of Russia to the
Council of Europe
Summary of
Latchezar Toshev's Expose
(European
Democrat's Group)
Strasbourg,
27-th June 1994
“Perestroika”
used to be a key word in Russia for some considerable time. I think
that “Perestroika” only meant such reforms , which on no account
should disturb the power of communists, nevertheless the way named
themselves later.
“Perestroika”
was aimed at escaping the isolation, communist countries had been put
in, and destruction of plan economy – unable of being kept up.
The
developments of the recent years in Russia and in most of Russian
satellites have shown that the outcome is a collapse of the capital
in possession of “Red Mafia”, also controlling economy and trade.
Still most of the politicians and state-administrators come from the
former Nomenclature.
In fact the
communists have not stepped aside, but abandoning the communist
dogmas have become wealthy, plundering the state-possession that
should have been shared out in a just manner.
The forthcoming
mass-privatization will lead to even greater enrichment of the
communist circles and their satellites, since it shall be conducted
in a way determined by the former communists.
This way the power and
influence upon the society by the “old forces” will be guaranteed
for an extremely long time. There is a lack of foreign investments,
so real concurrence is impossible.
Pretending that
Democracy and Human Rights are respected, the former communists
intend to get involved in the structures of the Western World, what
is induced by strong economic interest. The total formal or informal
control over the media provides opportunity for propaganda and
circulating opinion, that does not disturb the interest of the “
Real Sovereigns”.
The Russian
Democracy is just sham Rights and Freedom, which could not be
exercised.
KGB and the
other secret services run at full blast and serve the interests of
the ones who have been in power for a long time up to now. Following
the well developed by these organizations strategies, the communists
come back all over Eastern Europe, but now in democrat's shoes.
The affiliation
of Russia to the Council of Europe, without serious commitments for
development of a real Democracy, will be a great shock for the
genuine democrats, believing that Europe will not be mislead easily
and shall stand up for Democracy.
The affiliation
of Russia now, will also ruin the reputation of the Council of Europe
in front of many people, who trust it.
Communism is a
worldwide conspiracy that should not be tolerated and we could not
make ourselves accept its lies.
Encouragement
of the camouflage favours communists and its is harmful for Russia.
Only the firm
lire of the European democratic institutions could compel the
communists to step back or to take mask off.
This should be
preferred to the lie.
Clowns like
Jirinovsky aim at influencing the public opinion , so the West should
be made support the “Perestroika” followers.
These are theatrical
sides of politics, so typical for the “tragic Russian soul”.
Democratic standards for the Council of Europe membership must be
equal for all member states.
Europe must
manifest a clear and firm stand on the Russian issue and the “former”
communists should make concessions towards development of independent
institutions, fair elections, free media, free market economy and
resistance against the Mafia.
Never ever must
we agree with simulations. This stand would be beneficial both for
Russia and Europe.
Hard-liners
would wish to make use of unpopularity of the Reforms to return and
have their power back, but hardly ever were they likely to believe,
that restoration of the old Communist system is possible.
This is
more likely a struggle for power with the wing of the “Perestrika”
followers.
The Russian
imperial interest affect many sovereign countries in East Europe.
There are rather many questions in this directions to put to Russia
into an awkward position.
Against this bachground, I
think, that Eastern European countries should be guaranteed against
any Russian intervention in their home affairs and in their foreign affairs.
Until now the Russian troops are allocated in many independent
states. This is not acceptable for them and for us too.
Russia must
recant its imperialist policy, what has to be guaranteed by the
“Great Powers”.There should be no more negotiations and treaties
like the ones in Yalta, Moscow, Potsdam, Malta, where West and Russia
reached agreements at the expense of the small and defenseless East
European countries.
Concluding I
think, that the communist mutations should be watched closely by the
Council of Europe. Russia has to be given time and chance to complete
real Reforms toward development of Democratic system and free market
economy. Only then, could we consider integration of Russia with the
European family.
...
Evolution de la Russie et
adhésion éventuelle au Conseil de l'Europe
Résume de l'exposé de Latchezar Toshev
Groupe des Démocrates Européens
27 Juin 1994, Strasbourg
La Pérestroïka a
été pendant longtemps un mot clé en Russie. Je pense que ce terme désignait
uniquement des reformes qui ne devaient en aucun cas gêner le pouvoir des
communistes, quel que soit le nom qu'ils se sont donnés par la suite.
La Pérestroïka
visait à permettre aux pays communistes d'échapper à l'isolement et à supprimer
le système d'économie planifiée qui ne pouvait être maintenu.
L'évolution
récente de la Russie et de la plupart de ses satellites montre que le résultat
a été de faire tomber le capital aux mains de la “Mafia rouge” qui contrôle
l'économie et le commerce. La plupart des hommes politiques et des hauts
fonctionnaires de l'Etat sont toujours issues de l'ancienne Nomenklatura.
En fait, les
communistes ne se sont pas retirés mais, abandonnant la doctrine communiste,
ils se sont enrichis en pillant les biens de l'Etat qui auraient dû être
partagés équitablement. La privatisation massive qui va avoir lieu ne fera
qu'enrichir encore les milieux communistes et leurs satellites car ce sont eux
qui en fixeront les modalités. Le pouvoir et l'influence des “anciennes forces”
sur la société seront ainsi assurés pour
très longtemps.
Etant donné
l'absence d'investissements étrangers, une véritable concurrence est
impossible.
En prétendant que
la démocratie et les droits de l'homme sont respectés, les anciens communistes,
motivés par de puissants intérêts économiques, entendant participer aux
structures du monde occidental. Le contrôle direct et indirect exercé sur les
medias permet de faire de la propagande et de diffuser des opinions qui ne
gênent pas les intérêts des “véritables souverains”.
La démocratie
russe n'est qu'un simulacre de libertés et de droits qui ne peuvent être
exercés. Le KGB et les autres services secrets fonctionnent à plein régime et
servent les intérêts de ceux qui depuis longtemps déjà sont au pouvoir. Selon
des stratégies bien mises au point par ces organisations, les communistes
reviennent dans toute l'Europe orientale mais cette fois en habit de démocrate.
En l'absence
d'engagement sérieux au service de l'instauration d'une véritable démocratie.
L'adhésion de la Russie au Conseil de l'Europe sera un grand choc pour les
véritables démocrates qui croient que l'Europe ne se laissera pas facilement
tromper et défendra la démocratie. L'adhésion
de la Russie maintenant ruinerait aussi la réputation du Conseil de l'Europe
aux yeux de nombreuses personnes qui lui font confiance.
Le communisme est
un complot mondial qu'il ne faut pas tolérer; ses mensonges sont inadmissibles.
C'est faire le jeu des communistes et desservir la Russie que d'encourager le
camouflage. Seule une position ferme des institutions démocratiques européennes
peut obliger les communistes à faire marche arrière ou à jeter le masque; cela
est préférable au mensonge. Les bouffons l'Occident ont soutenir les partisans
de la Pérestroïka. C'est le côté théâtral de la politique, si caractéristique
du tragique de “l'âme russe”.
L'Europe doit
prendre une position claire et ferme sur la question russe et les “anciens”
communistes faire des concessions de manière à permettre des institutions
indépendantes, des élections honnêtes, des medias libres, une économie de
marché et la résistance à la mafia.
Jamais nous ne
devons accepter le simulacre dans l'intérêt même - de la Russie comme de
l'Europe.
Les tenants de la
ligne dure voudraient profiter de l’impopularité des reformes pour reprendre le
pouvoir mais ils n'ont sans doute jamais cru à la possibilité de rétablir
l'ancien régime communiste.
Il s'agit plutôt
d'une lutte pour le pouvoir avec les partisans de la Pérestroïka.
L'impérialisme
russe touche de nombreux pays souverains d'Europe de l'Est.
Il y a dans ce
domaine bien des questions qui peuvent mettre la Russie dans l'embarras.
En conclusion, je
pense que le Conseil de l'Europe doit suivre de très près l'évolution du monde
communiste. Il faut donner à la Russie le temps et la possibilité de mettre en
œuvre de véritables réformes en vue d'instaurer la démocratie et l'économie de
marché.
Alors
seulement nous pourrons envisager d'intégrer la Russie dans la famille
européenne
Opinion
193 (1996)
Application
by Russia for membership of the Council of Europe
Author(s): Parliamentary Assembly
Origin - Assembly debate on 25 January 1996 (6th and 7th
Sittings) (see Doc.
7443Doc.
7443, report of the Political Affairs Committee, rapporteur: Mr Muehlemann;
and Doc.
7463, opinion of the Committee on Legal Affairs and Human Rights,
rapporteur: Mr Bindig). Text adopted by the Assembly on 25 January 1996 (7th
Sitting).
1. The Russian Federation applied to join the Council of
Europe on 7 May 1992. By Resolution (92) 27 of 25 June 1992, the Committee of
Ministers asked the Parliamentary Assembly to give an opinion, in accordance
with Statutory Resolution (51) 30 A.
2. Special guest status with the Parliamentary Assembly
was granted to the Russian Parliament on 14 January 1992.
3. Procedure for an opinion on Russia's request for
membership was interrupted on 2 February 1995 because of the conflict in
Chechnya. On 27 September 1995, with the adoption of Resolution
1065, procedure was resumed on the grounds that Russia was henceforth
committed to finding a political solution and that alleged and documented human
rights violations were being investigated.
4. The Assembly has followed the events of December 1995
in Gudermes and the recent events in Pervomayskoye with deep concern. It firmly
condemns the taking of hostages as an act of terrorism and a flagrant violation
of human rights, which no cause can justify. At the same time, it considers
that the Russian authorities did not show sufficient concern for the safety of
the hostages. The apparently indiscriminate use of force cost the lives of many
innocent people and violated international humanitarian law. The Chechen conflict
cannot be resolved by the use of force. There will be no peace in the region,
nor an end to terrorist attacks, without a political solution based on
negotiation and on European democratic values.
5. The Assembly notes that political, legal and economic
reforms have been sustained. The legal system continues to show shortcomings,
as noted by Council of Europe legal experts (7 October 1994). Nonetheless,
there is progress towards a general awareness of - and respect for - the rule
of law.
6. Assurances of continued progress were given to the
Council of Europe by the President of the Federation, the Prime Minister, the
President of the Duma and the President of the Council of the Federation in
their letter of 18 January 1995.
7. On the basis of these assurances and of the following
considerations and commitments, the Assembly believes that Russia - in the
sense of Article 4 of the Statute - is clearly willing and will be able in the
near future to fulfil the provisions for membership of the Council of Europe as
set forth in Article 3 ("Every member of the Council of Europe must accept
the principles of the rule of law and of the enjoyment by all persons within
its jurisdiction of human rights and fundamental freedoms, and collaborate
sincerely and effectively in the realisation of the aim of the Council
..."):
7.1. Russia has been taking part in various activities of
the Council of Europe since 1992 - through its participation in
intergovernmental "co-operation and assistance" programmes (notably
in the fields of legal reform and human rights), and through the participation
of its special guest delegation in the work of the Parliamentary Assembly and
its committees;
7.2. "political dialogue" between Russia and
the Committee of Ministers has been established since 7 May 1992;
7.3. Russia has acceded to several Council of Europe
conventions, including the European Cultural Convention;
7.4. the following legislation is being prepared as a
matter of priority, with international consultation, on the basis of Council of
Europe principles and standards: a new criminal code and a code of criminal
procedure; a new civil code and a code of civil procedure; a law on the
functioning and administration of the penitentiary system;
7.5. new laws in line with Council of Europe standards
will be introduced: on the role, functioning and administration of the
Procurator's Office and of the Office of the Commissioner for Human Rights; for
the protection of national minorities; on freedom of assembly and on freedom of
religion;
7.6. the status of the legal profession will be protected
by law: a professional bar association will be established;
7.7. those found responsible for human rights violations
will be brought to justice - notably in relation to events in Chechnya;
7.8. effective exercise will be guaranteed of the rights
enshrined in Article 27 of the constitution and in the law on freedom of
movement and choice of place of residence;
7.9. conditions of detention will be improved in line
with Recommendation R (87) 3 on European prison rules: in particular, the
practically inhuman conditions in many pre-trial detention centres will be
ameliorated without delay;
7.10. responsibility for the prison administration and
the execution of judgments will be transferred to the Ministry of Justice as
soon as possible;
7.11. the state and progress of legislative reform will
permit the signature and ratification, within the indicated timetable, of the
European conventions listed hereunder in paragraph 10;
7.12. the Russian Federation will assist persons formerly
deported from the occupied Baltic states or the descendants of deportees to
return home according to special repatriation and compensation programmes which
must be worked out.
8. With a view to the fulfilment of these assurances and respect
for these commitments, the Assembly resolves to establish - with the close
co-operation of Russia's national parliamentary delegation - its own
parliamentary "advisory and control" programme under the authority of
the committees responsible for the implementation of Order No. 508 (1995) on
the honouring of obligations and commitments by member states of the Council of
Europe. This programme will complement, and not prejudice, the monitoring
procedure under Order No. 508 (1995).
9. As a contribution to long-term assistance and
co-operation, the Assembly welcomes the European Union/Council of Europe joint
programme for the strengthening of the federal structure and of human rights
protection mechanisms and for legal system reform: 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.
10. The Parliamentary Assembly notes that the Russian
Federation shares fully its understanding and interpretation of commitments
entered into as spelt out in paragraph 7, and intends:
10.1. to sign the European Convention on Human Rights at
the moment of accession; to ratify the Convention and Protocols Nos. 1, 2, 4, 7
and 11 within a year; to recognise, pending the entry into force of Protocol
No. 11, the right of individual application to the European Commission and the
compulsory jurisdiction of the European Court (Articles 25 and 46 of the
Convention);
10.2. to sign within one year and ratify within three
years from the time of accession Protocol No. 6 to the European Convention on
Human Rights on the abolition of the death penalty in time of peace, and to put
into place a moratorium on executions with effect from the day of accession;
10.3. to sign and ratify within a year from the time of
accession the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment;
10.4. to sign and ratify within a year from the time of
accession the European Framework Convention for the Protection of National
Minorities; to conduct its policy towards minorities on the principles set
forth in Assembly Recommendation
1201 (1993), and to incorporate these principles into the legal and
administrative system and practice of the country;
10.5. to sign and ratify within a year from the time of
accession the European Charter of Local Self-Government and the European
Charter for Regional or Minority Languages; to study, with a view to
ratification, the Council of Europe's Social Charter; and meanwhile to conduct
its policy in accordance with the principles of these conventions;
10.6. to sign and ratify and meanwhile to apply the basic
principles of other Council of Europe conventions - notably those on
extradition; on mutual assistance in criminal matters; on the transfer of
sentenced persons; and on the laundering, search, seizure and confiscation of
the proceeds of crime;
10.7. to settle international as well as internal
disputes by peaceful means (an obligation incumbent upon all member states of
the Council of Europe), rejecting resolutely any forms of threats of force
against its neighbours;
10.8. to settle outstanding international border disputes
according to the principles of international law, abiding by the existing
international treaties;
10.9. to ratify, within six months from the time of
accession, the agreement of 21 October 1994 between the Russian and Moldovan
Governments, and to continue the withdrawal of the 14th Army and its equipment
from the territory of Moldova within a time-limit of three years from the date
of signature of the agreement;
10.10. to fulfil its obligations under the Treaty on
Conventional Armed Forces in Europe (CFE);
10.11. to denounce as wrong the concept of two different
categories of foreign countries, whereby some are treated as a zone of special
influence called the "near abroad";
10.12. to negotiate claims for the return of cultural
property to other European countries on an ad hoc basis that differentiates
between types of property (archives, works of art, buildings, etc.) and of
ownership (public, private or institutional);
10.13. to return without delay the property of religious
institutions;
10.14. to settle rapidly all issues related to the return
of property claimed by Council of Europe member states, in particular the
archives transferred to Moscow in 1945;
10.15. to cease to restrict - with immediate effect - international
travel of persons aware of state secrets, with the exception of those
restrictions which are generally accepted in Council of Europe member states,
and to facilitate the consultation of archives kept in the Russian Federation;
10.16. to ensure that the application of the CIS
Convention on Human Rights does not in any way interfere with the procedure and
guarantees of the European Convention on Human Rights;
10.17. to revise the law on federal security services in
order to bring it into line with Council of Europe principles and standards
within one year from the time of accession: in particular, the right of the
Federal Security Service (FSB) to possess and run pre-trial detention centres
should be withdrawn;
10.18. to adopt a law on alternative military service, as
foreseen in Article 59 of the constitution;
10.19. to reduce, if not eliminate, incidents of
ill-treatment and deaths in the armed forces outside military conflicts;
10.20. to pursue legal reform with a view to bringing all
legislation in line with Council of Europe principles and standards: in
particular, Presidential Decree No. 1226 should be revised without delay;
10.21. to extend its international co-operation to
prevent - and eliminate the ecological effects of - natural and technological
disasters;
10.22. to sign and ratify within a year from the time of
accession the General Agreement on Privileges and Immunities of the Council of
Europe and its additional protocols;
10.23. to co-operate fully in the implementation of
Assembly Order No. 508 (1995) on the honouring of obligations and commitments
by member states of the Council of Europe, as well as in monitoring processes
established by virtue of the Committee of Ministers' Declaration of 10 November
1994 (95th session);
10.24. to respect strictly the provisions of
international humanitarian law, including in cases of armed conflict on its
territory;
10.25. to co-operate in good faith with international
humanitarian organisations and to enable them to carry on their activities on
its territory in conformity with their mandates.
11. The Assembly recommends that the Committee of
Ministers - on the basis of the commitments and understandings indicated above:
11.1. invite the Russian Federation to become a member of
the Council of Europe;
11.2. allocate eighteen seats to the Russian Federation
in the Parliamentary Assembly;
11.3. guarantee that the Organisation's means and
capabilities, in particular those of the Assembly and of the human rights
institutions, are increased to meet the consequences of these decisions, and
refrain from using the Russian Federation's accession to reduce the
contributions of states which are already members.
Russia's
application for membership of the Council of Europe [1]
Doc. 7463
18 January 1996
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 Mьhlemann, 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-а-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: 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: 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.
