Antidiscrimination in Russia

Antidiscrimination in Russia

Combating Discrimination in Russia: Strategies for Lawyers and NGOs

Background

Over the past few years, anecdotal evidence and the reports of non-governmental monitoring organizations have noted an increase in discriminatory practices and violence against racial/ethnic minorities on the territory of the Russian Federation. One effect of discriminatory practices has been the precarious legal status of a large number of former Soviet citizens who previously resided legally in the Russian Federation, but who have been considered illegal migrants since the entry into force in 2002 of the Federal Laws on Russian Citizenship and on the Legal Status of Foreign Citizens. Other human rights problems include racially selective inspections and identity checks by law enforcement targeting people from specific minorities, including those from the Caucasus and Central Asia and Roma minority, and numerous reports that residence registration is used as a means of discriminating against certain ethnic groups (UN Committee on the Elimination of Racial Discrimination Concluding Observations CERD/C/62/CO/7, March 2003).

Article 19 of the Russian Constitution stipulates that everyone is equal before the law and prohibits any restriction of rights on the grounds of race, ethnicity, national origin, or language – an “equal rights” provision that is reproduced in the civil code, criminal code, labor law, and administrative legislation. However, there exists no specific, binding anti-discrimination legislation that defines discrimination (not to mention the distinct meanings of “direct” or “indirect” discrimination) nor a list of legal mechanisms, judicial or otherwise, for redress of harm caused by discriminatory treatment.

In theory, the Constitution is an act of direct effect, and its equal rights provisions can be directly applied by a court. However, lawyers are not accustomed to seeking – nor are judges accustomed to sanctioning – the application of constitutional provisions in ordinary courts. Judges, defence lawyers and the Russian public are not familiar with discrimination as a concept of law. In a number of cases where discrimination occurred, complainants have failed to argue it, confining themselves to the “substantive” right at issue (i.e., denial of residence permit, employment dismissal, refusal to grant refugee status). In such cases, the courts' legal reasoning does not reach the question of whether persons were treated differently in similar situations.

Though international treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) can be used in domestic courts, lawyers and judges rarely cite them in practice.

Russian lawyers are, however, increasingly turning to the European Court of Human Rights. In the last two years, applications from Russia to the Court have exceeded 10,000, outnumbering those from any other country in the Council of Europe. During this period, however, only 14 cases from Russia were ruled admissible. Clearly the demand for skilled human rights litigation in Russia is matched by the need for training and strategic thinking in the use of domestic and regional human rights instruments. The Court in Strasbourg has generated case law in areas, such as police brutality, that matter to discrimination’s victims. Additionally, the evolution of European Union law—particularly the adoption of prohibitions against discrimination on grounds of race and gender and in the field of employment—also offers additional tools to antidiscrimination litigators seeking to call upon European norms.

The grave discrimination that minority groups suffer in Russia requires urgent remedies. There is almost no experience in the human rights community of litigating discrimination as such, and a tremendous need to build these capacities so that the legal system may become an effective anti-discrimination tool. Systematic documentation of the problem, necessary to prove discrimination, also does not yet exist. The challenge will be to develop appropriate documentation and build Russian NGOs’ capacity to use this as a basis for litigation. To meet this challenge, the Justice Initiative is developing a number of projects.

Objectives

The purpose of the projects is to reduce the incidence of ethnic and racial discrimination by state actors in the Russian Federation, and to build NGO legal capacity, through documentation and litigation to challenge discriminatory acts in Russian courts, at the European Court of Human Rights, and/or at the CERD. The projects’ expected outputs include:

  • New documentation of discrimination in Russia, revealing patterns of discrimination that will form the basis of argumentation in anti-discrimination cases
  • Development of a methodology of selection, preparation, and litigation of racial/ethnic discrimination cases. This methodology could be used not only by those lawyers that will participate in the project, but also by other human rights lawyers in the country
  • Draft anti-discrimination legislation for Russia
  • Over time, judicial decisions that interpret the equal rights provision of the constitution and provide redress for victims of discrimination
  • Increased capacity on the part of NGOs to seek legal remedies for acts of discrimination and to advocate for the adoption of anti-discrimination legislation in Russia

The projects will be implemented within the framework of already-functioning networks of NGO and/or university-based legal-aid offices.

Activities

Anti-Discrimination Steering Committee
Following a January 2003 workshop on anti-discrimination, organized in Moscow by the Justice Initiative in cooperation with then-existing Law Program of OSI-Russia, the Justice Initiative and a number of leading Russian human rights and minority rights NGOs formed the Anti-Discrimination Coalition to develop and take forward a number of projects to address racial/ethnic discrimination through legal means. The Coalition’s Steering Committee will incubate the development of an ongoing series of initiatives to document and challenge specific manifestations of racial and ethnic discrimination in different parts of Russia.

Discrimination against ethnic Tajiks, Roma Meskhetians, and others
In addition to country-wide initiatives, the Justice Initiative is developing small-scale documentation and advocacy projects in different regions of Russia that focus on the rights of a particulardiscriminated-against groups. Ethnic Tajiks, Roma, and Meskhetians suffer grave discrimination from both state and non-state actors. These groups are generally politically and economically disadvantaged. Sometimes their disempowerment is the legacy of long years of discrimination; others, such as ethnic Tajiks, are migrant workers who have never held Russian citizenship, yet are essential to the Russian economy. The Justice Initiative will work with community groups and public-interest law firms to bring cases of discrimination to light and seek legal remedies where appropriate.

Partners

Members of the Anti-Discrimination Steering Committee include the following Russian NGOs: the Center for Development of Democracy and Human Rights, the Foundation for Civil Society, JURIX, Memorial Human Rights Centre, Moscow Helsinki Group, Roma-Ural, the SOVA Institute of Research, plus additional NGOs on a project specific basis. The Justice Initiative’s partners also include additional NGOs on a project specific basis.