Optimism of the will: defending human rights in Russia

posted 11 Dec 2010, 07:02 by Rights in Russia   [ updated 15 Dec 2010, 02:12 ]
Simon Cosgrove
10 December 2010
Reprinted by kind permission of Open Democracy - Russia

‘I shall continue to live in the hope that goodness will finally triumph.’ – Andrei Sakharov, January 1982
Human rights defenders, it might be said, are motivated by three things in particular: a sense of justice, a drive to action, and hope. Of these, the most elusive, and perhaps the most significant, is hope. This is not a fanciful or impractical ‘hope’ of success - something to which failure, or lack of success, may put a speedy end. Hope for human rights defenders is a hard-headed ‘optimism of the will’ grounded in a realistic awareness of injustice and a determination to act as effectively as possible in difficult circumstances. It is also forward-looking and opportunistic, surveying the present for new opportunities for future action.

Hope of this kind, the ‘optimism of the will’, is brought by Russia’s human rights defenders to the work that they do in a social and political context, moulded by history and contemporary developments, which could be said to have four defining features.

One is the gulf that exists between the institutions of the State and civil society.

A second is the weakness of a judicial system that lacks independence and, rather than being an impartial arbiter, acts as the enforcer of State interests (or the interests of those at the levers of State power).

A third is the manner in which political power tends to be personalized, and concentrated in a relatively small number of individuals, at every level, and most of all at the apex of government.

A fourth is this very factor of hope – this ‘optimism of the will’ – which, whether in times of repression, or in times of liberalization, is something inherent in the human rights community. It is certainly not something called into being by political leaders. Rather, it establishes a standard by which these leaders can be judged. Andrei Sakharov himself expressed this when he said: ‘I shall continue to live in the hope that goodness will finally triumph’.

A very brief review of events this past November highlights the interplay of these factors in four areas where human rights defenders oppose State actors on unequal terrain: media rights, freedom of assembly, police reform, and judicial reform.

i. The continuing attacks on Russia’s journalists bear witness to the bravery of individual media workers and to the ruthlessness of their opponents. Despite continuing formal and informal government controls, print media remain fiercely contested ground in Russia today. The ferocious attack on Kommersant journalist Oleg Kashin gained much media coverage, and President Medvedev made a public intervention insisting on the need to find and punish those responsible.

There were also a number of other attacks, including those on Anatoly Adamchuk, a reporter with Zhukovskiye vesti in Zhukovsky, Moscow region; on Sergei Mikhailov, editor-in-chief of Saratovsky reporter, in Saratov, and on Khusein Shadiev, editor-in-chief of Serdalo (Light) in Ingushetia. Law enforcement proved unable to prevent these attacks, and as yet to find or punish the perpetrators.

The courts, meanwhile, in November proceeded with alacrity to rule against journalists in a series of defamation cases brought by government officials. These included a case won by the notorious Khimki town mayor, Vladimir Strelchenko, against journalist Mikhail Beketov, formerly editor of Khimkinskaya pravda, disabled by a brutal assault in 2008; that of the Moscow police against The New Times over a February 2010 story about abuses in Moscow’s riot police; and the suit won by Vladimir Kozhin, chief of the Office for Presidential Affairs, against Novaya Gazeta over a July 2010 report on corruption.

ii. Right of assembly remains a hotly contested issue. After months of pressure from human rights defenders and opposition groups, with a key role played by Strategy-31, and a change of mayor in the city of Moscow, there has been some easing in official attitudes. This was shown by the improved policing of the demonstration on Triumphal Square on 31 October. On 20 November a first officially sanctioned gay rights picket took place in St Petersburg, albeit aborted when eggs were thrown at participants.

The tone for these changes in official attitudes may have been set, under pressure from human rights defenders and civil society activists, by President Medvedev. On 6 November he vetoed a bill that had passed both the Duma and the Council of the Federation that would have imposed greater restrictions on the holding of rallies. Medvedev commented that the bill included ‘provisions hindering the freedom of citizens' constitutional right to hold assemblies, rallies, demonstrations, marches and pickets.’

iii. Reform of the Ministry of Internal Affairs (the police), an issue with which a growing number of human rights groups have been concerned in recent years, has been placed high on the political agenda by President Medvedev. His initiative to open up debate and draft legislation on police reform has been welcomed and readily taken up by human rights groups with appropriate expertise such as Public Verdict Foundation (Moscow), Committee Against Torture (Nizhny Novgorod) and Agora (Kazan), to name but three.

While the presidential initiative may have been promising, there has been little positive outcome to this process to date, and much dissatisfaction with the bill as drafted. The November developments in the case of Sergei Magnitsky, the Hermitage Capital lawyer who died in pretrial detention on 16 November 2009, could be regarded as a commentary on this process. These show that powerful elements within the Ministry of Internal Affairs remain immune to criticism – let alone fundamental reform. While Sergei Magnitsky was posthumously given Transparency International’s Integrity Award for his crusade against corruption, the Interior Ministry proceeded to award officers implicated in his death and, indeed, on 15 November accused Magnitsky of having participated in a scheme to embezzle 5.4 billion roubles and challenged his credentials as a lawyer.

iv. Reform of the judiciary has been the focus of a November report by the International Commission of Jurists (The State of the Judiciary in Russia). The report notes that many of the problems of Russia’s judicial system have ‘deep roots in the legal and political culture of the Russian state bureaucracy and society,’ and the lack of judicial independence in the present day is ‘clearly facilitated by a legislative and administrative framework that fails to protect judges from undue influence by state or private interests.’ It called for ‘a clear and comprehensive programme, structure and process for legislative reform and for the implementation of such reforms.’ According to the report, ‘the statements of President Medvedev regarding judicial reform are highly encouraging.’ Yet it questioned ‘whether there exists in Russia sufficient political will and consensus to establish a truly independent judiciary.’

In this way the report raises indirectly the issues surrounding Dmitry Medvedev’s presidency. Is the head of the Russian State sincere in his announcements? Does he have the power to act effectively to implement policy? And if not, is he merely playing second fiddle to his Prime Minister, Vladimir Putin (in the colourful language of the WikiLeaks cables, playing Robin to Putin’s Batman)?

For the human rights lawyer Karinna Moskalenko, a vital bulwark against the failings of the Russian judicial system is the European Court of Human Rights. As she points out in a recent article, the role of the European Court of Human Rights in Russia is based on Article 15 Section 4 of the 1993 Russian Constitution which ‘contains a guarantee that in Russia […] the most fundamental international standards must be observed.’ However, Moskalenko is much perturbed by recent statements made by Valery Zorkin, chair of the Constitutional Court who, ‘in order to please those currently in power […] has proposed that the binding nature of the decisions of the European Court be put in question.’ She also issued a challenge to President Medvedev, in language more direct than that used by the International Commission of Jurists, calling on him to uphold the Constitution: ‘There is still the President [...] and one would like to hope that, with unwavering hand, he will put an end to attacks on the foundations of the Constitution of Russia.’

Today, 10 December, Human Rights Day, is an appropriate moment to take stock of the human rights situation in Russia, and to look ahead. Yet this year the day itself is overshadowed for Russia’s human rights defenders by 15 December, when the verdict in the second trial of Mikahil Khodorkovsky and Platon Lebedev is expected. Russian human rights defenders, opposition leaders and cultural figures have called for Mikhail Khodorkovsky and Platon Lebedev to be acquitted. Such calls have also been made from outside Russia. For many observers, the forthcoming verdict will clarify the issue of who has ultimate power over policy in Russia, President or Prime Minister. Yet Mikhail Khodorkovsky himself in his final address to the court, delivered on 2 November, has no illusions, stating tersely: ‘No one believes that it’s possible for a Moscow court to make an acquittal in the Yukos case.’ Later in the speech he spoke of hope: ‘Nonetheless, I want to say something about hope. Hope is the main thing in life.’ This is ‘the hope of freedom’, the hope ‘that Russia will yet become a modern country with a developed civil society.’ And he took up this theme again towards the end of his speech: ‘This is not about Platon and me. At least, it is not only about us. It is about the hopes of many citizens of our country. It is about the hope that tomorrow the courts will be able to protect their rights […].’

The ‘hope’ to which Mikhail Khodorkovsky refers – and which has run like a thread through the examples cited in this short essay- is not a passive expectation of an act of grace from persons in positions of authority. On the one hand it speaks to the courage, determination, resilience, solidarity and self-reliance of Russia’s community of human rights defenders. And on the other it is a judgment passed on those in power.