28.10.2008
The Attitude and Roles of Russians under 35 - Human Rights and Rule of
Law Issues Today and Tomorrow
Anton Burkov - Currently a Ph.D. candidate in law at Cambridge
University, Burkov has been on the staff of the NGO Sutyajnik's Ural
Center for Constitutional and International Human Rights Protection
for ten years. In 2001 he was awarded the Themis prize "for
contributions toward the creation of a democratic society and the
development of state legal institutions."
Sutyajnik (Litigator) is a non-governmental human rights organization
of young lawyers and senior law students founded in Yekaterinburg,
Russia in 1994. As a human rights resource center, it helps Russian
citizens and organizations realize their rights by litigating public
interest cases, by educating people about human rights, and by
informing them about mechanisms for the protection of their rights
guaranteed in the Russian Constitution and international treaties. One
of Sutyajnik's principal goals is to defend human rights by working to
bring domestic legislation and practice into conformity with
international and constitutional standards.
Through its various activities, the ultimate goal of the NGO and its
young staff of lawyers and journalists has been to develop an
effective mechanism for making state officials and state agencies
responsible for any violations they commit of the Russian Constitution
or our laws and for bringing them to justice. Responsible state
officials today are the key to Russia's success tomorrow.
In the Soviet Union, there was no tradition of state actors' legal or
material responsibility for violations of law. Legislation providing
for this was lacking, with few exceptions (such as the protection of
drivers from abuse of power by the traffic police). Nobody could sue
the government or its officials for violations and ask a court to
award compensation for the consequent damages. The formal reason for
the absence of legal responsibility was the proclaimed "lack of class
conflicts" in Soviet society, which was supposed to automatically
preclude conflicts of interests between citizens and state officials.
Unfortunately, the reality proved to be very different - it caused
lack of accountability.
Mikhail Gorbachev, after coming to power n 1985 announced that his
main principle of governing the state would be the priority of the
rule of law. The realization of this principle could be achieved only
in an environment where the state and its officials were consistently
held responsible for and financially liable for their violations of
human rights and abuse of power. Gorbachev understood this clearly,
and the introduction of an appropriate mechanism for its enforcement
was one of Gorbachev's priorities.
A first step towards creation of a "state ruled by law" was the
adoption of a 1987 statute on the procedure for bringing complaints
against state officials for human rights violations. In 1989 a new
version of this law was passed, and in 1993 the law was adopted which
remains in force in Russia today. The law provides, in principle, that
anyone claiming there was a violation of law by state officials can
bring the perpetrator before a court and sue for pecuniary and
non-pecuniary damages. All the civil procedural guarantees had to be
followed by the court when considering cases. Cases were decided not,
as in the past, by a higher official, who often had issued the orders
leading to human rights violations, but by a court. And the applicant
could ask for compensation of damages.
Since 1993 many statutes have been promulgated which establish similar
rules, but their implementation is very deficient. It is possible to
get a judgment against a particular state official or agency which
includes the award of monetary compensation to be paid by the Ministry
of Finance, but its execution is impossible.
The reason is simple. There is no procedure which allows an individual
or a court to force the execution of a judgment against the Ministry
of Finance. The bailiff system, responsible for execution of court
decisions, has no authority over the execution of judgments against
the Ministry of Finance. It means that the payment of money awarded by
a court is totally up to the good will of the Ministry. No lien
against its bank accounts, assets, or other property can be imposed.
This situation was not noticed by the world community until Russia
joined the Council of Europe in 1996 and ratified the European
Convention of Human Rights in 1998 and recognised the right of
individuals to petition the European Court of Human Rights. The
European Court is flooded by cases on lack of execution of judgments
requiring payments by the Ministry of Finance. As of today 26% of all
cases considered by the European Court are cases against Russia, 25%
of which are cases on non-execution of judgments. In other words, the
European court has turned into the bailiff which has to deal with
Russian cases. After intervention of the European Court, the Ministry
of Finance pays awarded compensations within 3 months from the date of
the European judgment from a designated item of the state budget.
Of course, the Council of Europe and the European Court are not happy
about this situation. In response to their pressure, one would have
thought that the solution lies in giving the appropriate powers to the
bailiff system. Instead, the Russian government has proposed a draft
law creating a new Russian court to deal with cases of non-execution
of judgments instead of the European Court. It could have been an
alternative solution, but it achieves nothing when we read one clause
of the draft law. It states that the defendant in such cases is the
same Ministry of Finance. Once again - no forceful execution of
judgments possible, no responsibility of state officials. The
situation reverts to where it stood before perestroika. Today Russia
is paying off its foreign debts, but accumulating internal debts.
The solution lies in cooperation with existing international
institutions, particularly the Council of Europe and the European
Court of Human Rights. So far this is the only way for a Russian
citizen to challenge the resistance of the national authorities. A lot
has been done to alleviate the problem, much of it thanks to the
efforts of young lawyers of Sutyajnik. The defects of the Russian
government's proposal to secure payment of court awards has to be
explained to the European Court. We shall use the Convention for the
Protection of Human Rights more intensively.
What is the role of young people in the general human rights movement?
What is the attitude of young people to human rights issues?
Sutyajnik's young lawyers and journalists rarely apply to work for us
because they want to dedicate their time to the cause of human rights.
Most of them do not even know what human rights are. Many of them do
not make a conscious choice; they are simply looking for a job. Some
come to human rights NGOs in order to gain experience and then leave
for a law firm or a corporation. This isn't a surprising - young
people have many things to worry about.
Although many young people find jobs in the human rights world without
any altruistic purpose and lacking any knowledge of human rights
issues, some rather quickly become devoted to the cause and do amazing
things. Some of them stay for a long time, others leave earlier. But
if a young man stays long enough, he leaves the NGO a different
person. And I want to stress that an important mission of NGOs is to
educate their own employees. They learn about human rights, they learn
practical applications of law, they see people in grief, they start to
care about human rights not just by reading about them but by working
to secure them for fellow citizens. And I am very much convinced that
after this acquaintance with human rights they will never stop caring
about them and about social justice.
The sad part is that today getting young people involved in human
rights activities is more difficult than in earlier times. The goal to
make money has become a priority for the young. Today it isn't "cool"
to devote yourself to legal work in a human rights NGO: no money to be
made, no career to pursue, and the possibility of being harassed or
even punished for doing your job. In the late 1990s, our NGO had eight
or more full-time lawyers and five to eight interns. Young students
wanting to work as interns were put on a waiting list. Today it is
difficult to find paid interns, not to mention lawyers, and virtually
impossible to find volunteers. Students who lack any experience or
practical skills ask for a salary equal to that of an experienced
teacher. In the 1990s, we were happy to work for free just to gain
experience.
In the 1990s educational opportunities for rich and poor students were
more or less equal. Today students from wealthy families tend to be
well-educated, and the rest usually never get a proper education. The
rich are going into business and government - busy making money and
starting a career. They view human rights as obstacles in their way.
The rest are angry, looking for easy answers to difficult questions.
They aren't attracted to the complicated issue of human rights, but
are more likely to fall prey to xenophobia and nationalism. This
leaves human rights NGOs short of personnel when the demands for
securing and defending human rights are increasing.
Добавить комментарий: