Sergei Kovalev: Human Rights Activists and the Regime [Moscow Helsinki Group]

posted 13 Dec 2017, 06:03 by Rights in Russia   [ updated 13 Dec 2017, 06:47 ]
26 November 2017 

By Sergei Kovalev, member of the Moscow Helsinki Group, head of Russian Memorial 

Source: Moscow Helsinki Group 

Let me make some remarks about the programmatic statement that has been presented to the Congress. The fundamental assertion here, sets the tone in the very first phrase: “…in Russia the transformation from a totalitarian state to a democratic one…, that began at the end of the 1980s, continues.” 
Excuse me! Today we can see Russia adding the final touches to an expressive self-portrait of herself as a totalitarian state. 

I’ll allow myself to point out some basic notions: to point out the distinction between legislation and the Law; to how human rights defenders forced the regime to observe the Law; to what the regime would like to get from human rights defenders; and to what we must demand from the regime, and from ourselves.

The Law: The Limits of Strength

The reference to the historical slogan “Observe the Constitution!”, in my view, is not correct. 

A. S. Esenin-Volpin announced this to be the general rule for civilized life, the principle of the rule of law, and certainly did not have in mind elevating to such heights this bombastic chatter about the 1936 Constitution of Bukharin and Stalin.

True, in the 1960s, 1970s and 1980s, the slogan, “Observe the Constitution!” was widely used by dissidents. But if we look at the details, we find the devil. That Constitution had been written carefully and cleverly: one subtext for the eminent Western liberal ignoramuses, another for the Soviet security services. Not every legislative act is based on the Law, and the Constitution of the USSR is an example of that.

The tricky 10th chapter of that Constitution concerning on the rights and duties of citizens did not have any meaning in jurisprudence. But it did have practical meaning for the courts, and how! It norms were cleverly formulated: in a superficial reading they sounded democratic, but in official commentaries we see they opened the way to limitless arbitrariness for the regime.

The famous Article 125 on the right to civil freedoms – of expression, publication, rallies and marches – was referred to at almost every trial of dissidents: “In accordance with the interests of workers and for the purposes of strengthening the socialist state, citizens of the USSR are guaranteed by law”…and the various rights were thereafter listed. We remember how we read it, and what the official commentary was like — the judges, the prosecutors, including the prosecutor general, the legislators. Who was empowered to define the “interests of the workers” and the “socialist state”? Of course, the All-Union Commuist Party (Bolsheviks), “the leading body of workers…the leading core of all organizations…both non-state and state,” in accordance with Article 126.

There was nothing in this Constitution worth citing. Everyone who gave this the least thought knew this very well. That’s why we didn’t refer to what had been written, but to our own stubborn insistence that right here, this very provision, just has to mean precisely this, and nothing else. At the same time sharp criticism of the written text of the Constitution was often heard. Was this, in effect, a “first draft,” quickly written, of another constitution? No, it was most likely the demand of a future Constitution.

Despite the assertion of the Congress' opening report, the Constitution of the USSR did not contain any democratic norms. “Our people” did not put any hopes in it. Our people did not even notice it, despite the insistence cries of cardboard speakers in every room of each communal apartment. Promises of a sweet life were heard, but it can’t be said that they evoked much trust, even among the most devoted "patriots." 

These conclusions do not depend on how deep, naïve, erroneous, intuitive, cautious, or, in the last resort, to what degree dictated by pragmatic requirements, the dissident appeals to the Constitution were. Possibly, in the  heads of various dissidents there were different assessments of the Constitution. But this is already history. And what it is important to remember today is that to respect the Law and to support unlawful legislation is, as the saying goes, two very different things.

The Regime: the Limits of Stability

In the report to the Congress it was said: "…human rights defenders… demanded that the Constitution be observed. And these demands, along with concessions from above, led to…” the democratic reforms of the end of the 1980s. Strange to hear such words, not only from contemporaries, but from those who were active participants in the events that changed history.

On 12 May 1976 the Moscow Helsinki Group was established. And at that moment there was no mention of “observing the Constitution.” The Moscow Helsinki Group demanded that the country comply with its international obligations, accepted by the USSR on 1 August 1975 for the sake of strengthening its dominance in Eastern Europe. All obligations, including the strict observance of democratic freedoms. And there you have it: for reasons of “diplomatic tolerance,” the USSR, without paying much attention, signed a document and suddenly there are troublemakers on the scene saying they will monitor and oversee state policy! Of course, very soon we, the camp inmates, met with every single one of those members of the Soviet Helsinki Groups. But the outcome was not what the regime expected! The call of conscience sounded in the civilized world, and Western intellectuals worthily responded to it. In the course of 18 months, 26 national and international Helsinki Groups, Committees and Associations had been set up! Before our very eyes a mechanism of international solidarity in defence of the Law and Democracy had been created and acquired a powerful influence on Western policymakers.

Pressure from the West is one of the main factors that brought about the reforms in the USSR after 1985. It was precisely this pressure that brought about what in the report is so confusingly and cautiously called “concessions from above.”

Human Rights Defenders: The Limits of Flexibility

The report to the Congress said nothing about the greatest of the country’s historical results, won at a considerable price. On the other hand, it said quite a lot about how we must avoid a struggle “with individual personalities and phenomena” and preserve the Constitution of the Russian Federation Constitution, “the pivot . . . of rights and freedoms.” And that “the main violators of the Constitution responsible for the mass human rights violations are the security services.”

Oh, those “security services”! It is they, it turns out, who are staffing the parliament and dictating laws to it that run counter to the Constitution; it is they who have seized the television channels and who lie regardless of the consequences, and it is they who control the press, have taken over the courts, and are handing out sentences. It is the “security services” that have turned Chechnya into a “black hole.” And neither “individual personalities” of our supposedly elected but in fact permanent padishah, nor his suddenly enriched friends, have anything to do with it, naturally. . . .

Today, human rights activists in Russia have a choice: there are open vacancies.Vacancies for defenders of the regime’s right to a free hand. For human rights activities who do not intend to hold the regime to account. For those who merely wish to take advantage of the opportunities the regime leaves them. Even better—the opportunities it encourages them to take up. 

Now there is a fashion for pro-regime and governmental human rights activists. But that is not who gathered at the Congress, after all! Here it is useful to recall the initial and basic, time-tested concepts. 

A human rights activist is always an opponent of the to. Any regime. Without an opponent, any regime immediately becomes “master in the house.” But in a decent house, after all, the regime is nothing but a temporary administrator. It is the people are the master. A civilized state creates its opponent inside the regime itself: the principle of separation of powers operates effectively. But even that is insufficient. There also must always be an opponent outside the regime’s sole source of legitimate authority — the people. These are the human rights activists, other institutions of civil society, and the independent press to which they always have access.

We do not have such a press, but this is not the main difficulty, which is that for eighteen years we have not had a regime that permitted free and fair elections or that understood the Law as its inevitable limitation. We have: “law is the will of the ruling class expressed in the form of laws,” that is, a simple means for eradicating undesirables.

The regime imitates and falsifies elections. The requirement not just for electing the regime but for the ability to remove elected officials at all levels, including the highest, is obvious. The demand for free elections with the participation of all real political forces and all real candidates and not only those chosen “sparring partners” also requires no proof.

The regime represses citizens who exercise their constitutional rights. And this is a crime.Anyone who supports the regime in this is an accomplice to a crime. What could be simpler, you’d think? Indeed, this simplicity is worse than stealing. What does it mean to “support” the regime? Hasn’t everyone who has not directly accused the regime of its countless crimes already supported it? But that’s not true: one must simply choose a cause according to one’s strength. Every small assistance to those who need it is better than indifference.

Naturally, uncomplaining patience is not a civic position. No one has the right to demand heroism of others. However, a society without citizens is that very “every nation" which deserves its government.

To this commentary on the report addressed to the Congress, extensive additions of the most general sense seem to be asked for. I will limit myself to a reference to some publications ( and to a brief reminder about my position in the fierce discussion about whether decent people should be cooperating with a criminal regime. I continue to fail to understand what draws people who have a well-earned name in this area of law to become members of the Presidential Human Rights Council. People who have achieved notable results through their persistence and courage. Under a President who has turned history back — who has returned Soviet judicial tyranny and multiplied the number of political prisoners. 

With sorrow I conclude that my questions have been in vain and have evoked irritation and perhaps even animosity.

Translated by Marian Schwartz and Simon Cosgrove