4.1.1 Formal Acceptance

Russia ratified seven core international human rights treaties, namely, cerd, ccpr, cescr, cedaw, cat, crc, crpd, and op-crc-sc and op-crc-ac. Participation in cerd, ccpr, cescr, cedaw and cat was inherited from the ussr by Russia in the context of succession. The ratifications were mostly motivated by the willingness of the ussr to confirm its commitment to international cooperation in the field of human rights together with the initiative to follow the general trend of other countries joining particular treaties.³²

The first treaty to be ratified, in 1969, was cerd, followed by the ratification of ccpr and cescr in 1973, as a preparatory measure for the participation of the ussr in the Conference on Security and Cooperation in Europe.³³ In 1981 the Soviet Union ratified cedaw as a country that was among the initiators of the elaboration of this treaty.³⁴ Ratification of cat took place in 1987, at a time of substantial political, economic and social reformation in the ussr (so-called perestroika) as an additional step on the path to democracy. In 1990, right after proclaiming its independence, Russia ratified the crc with the same motivation of following the democracy path.

In 2008 and 2013, respectively, op-crc-sc and op-crc-ac were ratified based on the willingness of Russia to comply with international norms to protect child rights together with the development of legal cooperation with other states in this field.³⁵ The additional motivation for op-crc-ac was the implementation of the recommendation of the crc Cttee to ratify this treaty. In 2012 Russia ratified crpd, after having signed it in the aftermath of the victories of Russian citizens at the Paralympic Games in 2006. The subsequent ratification of the treaty is related to the willingness to comply with international norms to protect the rights of persons with disabilities.³⁶

Russian authorities periodically consider the prospects for accession to the International Convention on the Rights of All Migrant Workers and Members of their Families (cmw), the International Convention for the Protection of All Persons from Enforced Disappearance (ced) and op-cat as part of the policy aimed at gradually increasing its international obligations.³⁷ Russia considers that it is premature to join cmw. The decision not to join cmw is influenced by the fact that very few countries had ratified the treaty (mainly ‘sending’ countries), and that its ratification will demand much more of an effort on the part of Russia, as a ‘receiving’ country. Among the factors preventing the ratification of the treaty are economic reasons (the lack of resources for ensuring the implementation of the Convention’s requirements); legal reasons (difficulties in reforming national legislation); and institutional reasons (the absence of necessary institutes for a comprehensive implementation of the Convention’s norms).³⁸ In the same vein Russia considers it premature to accede to ced. However, many provisions of this treaty are said to be incorporated into the national legislation.³⁹

With regard to op-cat, Russia contends that due to its active engagement with the European Committee for the Prevention of Torture (cpt) the work of the spt established under op-cat largely overlaps with cpt. Meanwhile, the idea of joining the treaty and establishing a National Preventive Mechanism in line with it is quite popular among civil society. The Ombudsman proposed the establishment of such a mechanism in the form of ‘the Ombudsman +’ model without the accession of Russia to the Protocol.⁴⁰

Unlike the ussr, which for a long time has insisted that the provisions of the treaties on individual complaints are interfering in the internal affairs of states and violate their sovereignty,⁴¹ Russia opened a new page of accepting the competence of the treaty bodies to consider communications and conduct inquiries.⁴² Four untbs (the HRCttee, the cat Cttee, the cedaw Cttee and the cerd Cttee) may consider individual communications against Russia and two untbs (the cat Cttee and the cedaw Cttee) may initiate inquiry procedure with regard to Russia. Right after its formation, on 1 October 1991, Russia accepted the competence of the HRCttee, the cat Cttee and the cerd Cttee to consider individual communications and the competence of the cat Cttee to conduct inquiries. In 2004, the Russian Federation ratified op-cedaw⁴³ as a step to demonstrate commitment to democratic tendencies in the field of gender equality, to raise the interest of Russian women in defending their rights in court and to enhance the awareness of international norms in this area.⁴⁴

In 2017 the head of the Russian delegation informed the cescr Cttee that accession to op-cescr was ‘unnecessary, as national legislation was sufficiently well developed to provide for adequate protection measures for economic, social and cultural rights’⁴⁵ and that the nhri was represented in all regions and maintained a website through which complaints could be filed.⁴⁶

It is claimed that Russia’s accession to op-crpd can be considered once the Russian national legislation, enforcement system and judicial practice have been fully developed to implement each norm of crpd. This process is still ongoing.⁴⁷

The majority of Russian state authorities do not see legal obstacles to the approval of op-crc-cp. However, the Ministry of Foreign Affairs together with the Ministry of Justice cautions against rushing into ratification due to the possible expansive interpretations of the phrase ‘exhaustion of all internal mechanisms for the protection of the rights of the child’ in the text of the Protocol.⁴⁸

4.1.2 Reservations

The ussr made similar reservations to cerd, cat and cedaw, considering itself not bound by their provisions to refer disputes between parties over the interpretation or application of these treaties to the International Court of Justice (icj) for a decision, and that for referral of the dispute to the icj the consent of all parties to a particular dispute would be necessary. The motivation was the general reluctance of the ussr to accept the compulsory jurisdiction of the icj.⁴⁹ These reservations were subsequently withdrawn in 1989 ‘as a step towards a realisation of the “new thinking” in foreign policy conceptions and international law policies’ in the period of perestroika.⁵⁰ The ussr also made a reservation to article 20 of cat authorising the Committee to conduct inquiries, which was withdrawn in 1991.

4.1.3 General Attitude of State towards UN Treaty System

The state gives significant attention to cooperation with the UN treaty system as a key element of the universal human rights system. Russia regularly submits its periodic reports, takes part in the dialogues with the treaty bodies and presents follow up information on the recommendations received. It is the understanding of Russia that the treaties do not determine the legal status of the committees’ recommendations (cos, views).⁵¹ Russia considers that these are of a non-binding nature and no sanctions are established for their implementation.⁵² Russia advocates its sovereign right to choose how the views are to be fulfilled with the recognition that they carry great weight and are taken seriously by its authorities.⁵³

4.1.4 Level of Awareness

Given the vast territory of Russia and differences between urban and rural conditions, the level of awareness of the treaties is not even throughout the country. The majority of interviewees mentioned that the awareness of the treaties is generally inadequate in the country.⁵⁴ While the state organises various educational programmes and awareness-raising campaigns for state officials,⁵⁵ the knowledge of the treaties is demonstrated mostly by the officials of the governmental structures and the judiciary who are directly involved in the process of preparation and presentation of reports to the committees.⁵⁶ Some respondents even mentioned the problem of the low awareness about the recommendations of the treaty bodies by the state bodies that are in the position of taking the relevant measures.⁵⁷ A wide awareness-raising initiative is being realised in relation to the judiciary through professional training, and the programme includes international law norms, which is obligatory for all judges in accordance with the 1992 Law on the Status of Judges in the Russian Federation.⁵⁸

Nevertheless, it is hard to ensure the awareness of numerous judges across the entire country about the UN human rights treaties, taking into account that they annually hear more than 30 million cases.⁵⁹ Many legal practitioners are said not to be sufficiently familiar with the treaties and the committees and with the ways in which to use their powers at the national level.⁶⁰ There are few, if any, professional training organised for lawyers in this field.⁶¹ Various training opportunities organised for lawyers, including by the Russian Federal Bar Association, mostly focus on developing skills for leading the case in the ECtHR, rather than the treaty bodies.⁶²

The international human rights system is forming a part of the university curriculum and is studied within the general course on international law as well as in the context of special educational programmes at Bachelor, Master’s and PhD levels. An example of such a programme is the joint Master’s programme International Protection of Human Rights, which was established in 2009 as the first Master’s programme in human rights in Russia, supported by the Office of the United Nations High Commissioner for Human Rights.⁶³ The programme is realised by the Consortium of nine Russian universities across Russia with the rudn University as a leading university.⁶⁴ The programme focuses on teaching the basics of the universal and regional human rights systems, while some core international human rights treaties and untbs are studied in-depth in specialised courses.⁶⁵

A sound contribution to the promotion of legal education in human rights is made by the Federal High Commissioner, who with the support of the President and Chairperson of the government, since 2017 has been working on the development of a human rights educational programme for schoolchildren and students (bachelor and specialist degree levels), including training for students of the above-mentioned Master’s programme and lecture courses in Russian universities; and managing the specialised satellite website on human rights education.⁶⁶

It seems that among the variety of Russian ngos those that use treaties in their work are mostly those few that have experience in presenting alternative reports to the committees.⁶⁷ The level of awareness of the other ngos is therefore low. Furthermore, there is a view that sometimes Russian ngos misunderstand the legal significance of treaty bodies’ cos (pointing to the obligation of the state to implement these as if they are legally binding) and the objective character of these recommendations, which is not always so.⁶⁸

The local researchers are aware of the treaties and cite them in their work. However, there is more interest in the realisation of the echr and the analysis of the practice of the ECtHR, rather than the UN human rights treaties.⁶⁹ There is a perception that the academic papers and textbooks sometimes contain incorrect or politically-motivated interpretations of the mandates of the treaty bodies.⁷⁰

The Russian public is the least informed about the treaty system layer of society.⁷¹ No information concerning translation of treaties into local languages has been found with the exception of translation of the main provisions of crpd into Russian sign language.⁷²

4.1.5 General Attitude of Russia towards UN Treaty System

Representatives of the Russian state authorities usually positively perceive the work of the committees and are willing to develop constructive dialogue with them.⁷³ However, there were a few instances when the state raised concerns on the content of some recommendations adopted by them. Specifically, Russia refused to accept the recommendations of the HRCttee on the situation in South Ossetia and insisted on their exclusion from the cos in question.⁷⁴ Another example was the State’s reaction to the cos of the cerd Cttee relating to the situation in Crimea following a review of Russia’s last periodic report. In particular, the Committee’s right to make recommendations on issues that were not raised and considered as part of the consideration of the periodic report was questioned.⁷⁵ There is also a view that the treaty bodies have in recent years discredited themselves due to the politicised character of their work, the tendency to impose their own interpretation of the provisions of the international treaties as legal obligations of states, an unwillingness to accept objective information and conceptual differences in the approaches of experts and Russian authorities.⁷⁶

4.1.6 Media Coverage

There was a marked increase in media coverage of activities of the treaty bodies in comparison to the previous research results. Most often the media covers information about the ratification of treaties, the consideration of state reports and recommendations of the committees.⁷⁷ As of the beginning of 2018 there were more than 77 500 media registered in Russia,⁷⁸ which makes it challenging to provide quantitative research in this field. What may nonetheless be concluded is that media resources of an anti-governmental political leaning tend to reveal the problems in the realisation of the treaties in Russia more frequently⁷⁹ than the media belonging to governmental political leaning.⁸⁰ Among all the treaties ratified by Russia, cat is the one that receives less attention on the internet.⁸¹ The most popular treaty on the internet is crpd.

4.1.7 State Reporting

Russia has submitted in total 55 reports with some reports submitted in a combined format.⁸² The delay period for submitting the report is usually ranging from a few months to a year with the longest delays of four years (one report under ccpr, one report under cat) and seven years (one report under cedaw). Through time the submission delays have shortened with even some cases of earlier submission of the reports (cedaw, crpd, crc, op-crc-ac).

A mechanism has been introduced for distributing responsibility between the executive state bodies for cooperation with the treaty bodies in accordance with the 2003 Decree of the government.⁸³ Under this Decree the relevant ministries and governmental bodies (minimum two, maximum five) were appointed as responsible for cooperation (preparation of periodic reports and participation in the constructive dialogue) together with the Ministry of Foreign Affairs as a coordinating body for each of the committees.⁸⁴ For instance, within the task of preparing a report the Ministry of Justice⁸⁵ as the body responsible for cooperating with the HRCttee and the cat Cttee, sends requests to the relevant state bodies⁸⁶ with a view to obtaining information on the main developments, implementation of the cos and comments on the Committee’s concerns.⁸⁷ On the basis of this information, the Ministry of Justice prepares the report and forwards it to the Ministry of Foreign Affairs, which submits the report to the relevant Committee.

While the procedural aspects of activities of the responsible structures and their concrete powers are not disclosed in detail in their regulatory legal acts, for one treaty (crpd) special procedure for the preparation of reports has been introduced by the Decree of the government of 11 June 2015.⁸⁸ Under this document the Ministry of Labour and Social Protection forms the interdepartmental working group with the participation of representatives of government bodies and constituent entities of Russia, state extra-budgetary funds, scientific organisations, and public organisations of persons with disabilities. Responsible executors of the sections of the report (that correspond to relevant articles of crpd) are the relevant state bodies indicated in the Annex to the Decree.⁸⁹

The state in its reports usually mentions that within their preparation consultations with various ngos have been upheld, but the authors could not obtain adequate information on the involvement of particular ngos, what the content of these consultations and their results were.⁹⁰ The interviewees mentioned that ngos and the nhri provide concrete information that is subsequently included in the state’s reports.⁹¹ Still a view was expressed on the need to ensure a more active participation of civil society and ngos in the preparation of reports.⁹² For one treaty (crpd) the state provided the legal basis for more active participation of ngos in the process of preparation of reports and implementation of the cos together with the state authorities.

The untbs have welcomed the improvement of the content and structure of Russia’s reports in conformity with their respective guidelines on reporting. As was mentioned in the previous research, Russian reports have gradually become more critical. However, the reports tend to provide information on the developments in the legal regulation and the policy measures with smaller attention given to the difficulties encountered by the state.⁹³ Nonetheless, the annexes to the reports and written replies to the list of issues are quite frank as they contain current statistics that do not always reflect positive tendencies in the country.

Reports of the Russian Federation to the untbs are always presented by the high-level ministerial delegation. Representatives of the relevant state agencies/services and higher courts are also included in the delegation.⁹⁴

There is no common Russian website where cos of all committees are published. cos usually are published in the media, including the websites of the responsible ministries (the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Labour and Social Protection) as well as on the websites of some ngos. As was mentioned earlier, the cos are published in the database Kontur managed by the Supreme Court for use by the judiciary.

4.1.8 Dialogues with Treaty Bodies in the Context of Presenting Its State Reports

Russia had seven dialogues with the HRCttee (in 1978, 1984, 1988, 1995, 2003, 2009 and 2014); six dialogues with the cescr Cttee (in 1980, 1984, 1997, 2003, 2011, 2017); six dialogues with the cat Cttee (in 1989, 1996, 2002, 2006, 2012, 2018); seven dialogues with the cerd Cttee (in 1978, 1984, 1989, 1995, 2003, 2009, 2014); seven dialogues with the cedaw Cttee (in 2015, 2010, 2002, 1998, 1995, 1989, 1983); four dialogues with the crc Cttee (in 1993, 1999, 2005, 2014); one dialogue with the crc Cttee under op-crc-ac in 2014; one dialogue with the crc Cttee under op-crc-sc in 2018; and one dialogue with the crpd Cttee in 2018. In total Russia had 40 dialogues with treaty bodies.

4.1.9 Submission of Reports by ngos and Independent State Institution

While the previous research indicated that ngos presented their reports to the cat Cttee, the cerd Cttee and the crc Cttee, the treaty body database does not contain the texts of these reports. The database demonstrates the texts of the ngos’ reports only starting from 2003 (for the cescr Cttee). It seems that that was the period when the ngos started to actively express their interest in the reporting process in Russia and to submit alternative reports to the committees. The database demonstrates that for each treaty from cycle to cycle the number of alternative reports has been growing significantly. Russian ngos submit joint alternative reports prepared by their coalitions and also reports prepared by single ngos separately. The reports are both comprehensive and thematic. For some treaties (cescr and crpd) ngos submit their reports both for the session and for the list of issues.

While the issue of reprisals against journalists and human rights defenders is continuously raised by different treaty bodies (the HRCttee, the cescr Cttee, the cat Cttee) it is unclear whether these cases were related to the activists directly involved in the reporting process. In May 2013 the cat Cttee sent two letters to Russia regarding the initiation of administrative case against the ngos Memorial⁹⁵ and Public Verdict⁹⁶ due to the fact that these organisations, performing the functions of foreign agents, carried out their activities in violation of the relevant provisions of the Code of Administrative Offences. The Committee was concerned that quotes from the 2012 alternative reports of these organisations were cited among the bases for the charges.⁹⁷ In response to these concerns Russia stressed that it is the right to participate in political and public life guaranteed in article 25 of ccpr that is applicable to the case. Therefore, such ‘matters do not fall within the mandate of the Committee’,⁹⁸ and are discussed in the national reports of Russia to the HRCttee.⁹⁹

The High Commissioner has started to submit reports to the committees since 2017, when her first report to the cescr Cttee¹⁰⁰ was considered. In 2018 the High Commissioner submitted her first reports to the cat Cttee,¹⁰¹ cerd Cttee¹⁰² and crpd Cttee.¹⁰³

4.1.10 Domestic Implementation Mechanism

There is no coordinated domestic process or institutional arrangement to implement cos. The implementation process is organised on an ad hoc basis for each treaty separately. For instance, the Ministry of Justice as the responsible body for the cooperation with the HRCttee stressed that it tries to implement its international human rights obligations, including in relation to the realisation of the cos, in good faith.¹⁰⁴ For one treaty (crpd) the government has established a procedure to implement cos through adopting an action plan of activities on the implementation of the cos in 2018, which includes a set of concrete measures to be undertaken by responsible authorities within concrete deadlines.¹⁰⁵ A similar action plan was claimed to be developed for implementing the cos of the cedaw Cttee after the consideration of Russia’s report in 2010,¹⁰⁶ but no information on this plan was found by the authors.

4.1.11 Treaty Body Membership

Russia has traditionally had members in the committees. During the Soviet era Soviet experts were present in the HRCttee,¹⁰⁷ the cerd Cttee¹⁰⁸ and the cedaw Cttee.¹⁰⁹ Since the formation of Russia to the present time Russia has members in the majority of untbs in respect of treaties to which Russia is a party. From 2002 to 2010 Professor YM Kolosov served as a member of the cescr Cttee. Since 2010 to today (until 2023) the membership in the Committee has been taken by Professor AKh Abashidze. Due to efforts of Prof. Abashidze a joint Master’s programme International Protection of Human Rights was launched in nine universities across Russia, where significant attention is given to the study of all core human rights treaties and the work of treaty bodies, including the impact of these treaties in Russia. Also, each year the Department of International Law of the rudn University organises conferences and seminars with the participation of governmental authorities and representatives of ngos that spread knowledge about the treaties and their committees in Russia. From 2003 up to 2019 Prof AS Avtonomov performed the activities of a member of the cerd Cttee. Currently the position of one of the cat Cttee’s experts is held by Prof Bakhtiyar R Tuzmukhamedov. From 1991 to 1994 Ms Tatiana Nikolaeva was a member of the cedaw Cttee. From 1991 to 1999 Professor YM Kolosov served as a member of crc Cttee. From 2012 up to the present time the membership in this Committee has been taken up by Ms Olga Khazova. From 2016 up to 2019 Mr Valery Rukhledev was elected as member of the crpd Cttee. In 2019 his position was taken by Mr Dmitry Rebrov, since Mr V Rukhledev had to withdraw from his membership for health reasons before the expiry of his mandate on 31 December 2020.

4.2.1 Reliance by Judiciary

According to the database of the court practice available to the authors,¹¹³ the following statistics of the use of the human rights treaties by Russian higher and lower courts, indicating reference to the treaty at least once in a particular domestic court case (from the most frequently-used to the least used-treaty): ccpr (around 305 700 decisions); crc (around 23 300 decisions); cescr (around 20 000 decisions); crpd (around 4 700 decisions); cat (around 4 400 decisions); cerd (around 100 decisions); op-crc-sc (around 40 decisions); cedaw (9 decisions). In their practice, Russian higher and lower courts rely on the treaties’ provisions as a guide to interpretation (with regard to all treaties). As a source of information and interpretation the judiciary also refers to the following treaty body documents: General Comments of the cescr Cttee and HRCttee; treaty bodies’ jurisprudence (HRCttee, cat Cttee, cedaw Cttee); periodic reports and cos (cerd Cttee, cat Cttee). Another important trend is the application of the treaty bodies’ decisions as a source of a remedy in cases where the Russian courts supported the applicant’s reference to the Committee’s decision in his or her plea for reviewing a court ruling on the basis of new circumstances (HRCttee, cedaw Cttee).¹¹⁴

4.2.2 Impact on and through Independent State Institutions

A noticeable impact of the treaties is demonstrated through the activities of the Ombudsman. The nhri refers to the provisions of the human rights treaties when giving legal assessment of various situations dealing with the realisation of human rights, when considering measures taken to implement the treaties (cat and crpd), launching legislative initiatives in the area of application of the treaties (endorsing a legal norm in the Code of Civil Procedure for reconsidering the court ruling on the basis of the decisions of the HRCttee, recommending to the government to develop draft comprehensive federal law ‘On Combating Domestic Violence’). Additionally, the High Commissioner expresses her position with regard to issues that are also addressed in the cos. For instance, the nhri shares the critiques of the law on the decriminalisation of beatings by the cescr Cttee and the cat Cttee, supported the position of the cat Cttee on introducing in the Russian Criminal Code a separate article on torture and the cedaw Cttee’s view on the need for the adoption of comprehensive legislation to prevent and address domestic violence against women. There are also examples when the High Commissioner opposes the position of the treaty body. Thus, she disagreed with the position of the cerd Cttee that manifestations of racism remain deeply rooted among football fans in Russia.¹¹⁵

4.2.3 Impact on and through Non-state Actors

It is difficult to provide an actual assessment of the use of the treaties by the lawyers due to a lack of information on this issue. However, the untbs tend to point to a lack of knowledge of the treaties among the representatives of the legal profession and recommend that the state should provide and enhance training for them. This view is sometimes supported by scholars and civil society representatives.¹¹⁶ Sometimes practising lawyers publish articles, where they refer to treaty provisions and the interpretations of the Committee, including on communications where they represented applicants (relevant for the cedaw Cttee).¹¹⁷ While there are almost no professional training related to treaty bodies in general or specific committees, one professional training has been planned to be organised in November 2019 for lawyers that focused on the practice of the cedaw Cttee to address violence against women.¹¹⁸

Among ngos that use the treaties and the Committees’ jurisprudence in their activities are mostly those that provide alternative reports to the treaty bodies. There are few examples of the use of the provisions of the treaties and their recommendations in the legal argumentation of the initiatives launched by ngos. The examples are the initiatives with regard to abolishing the administrative punishment for prostitution and the introduction of substitution therapy programmes for the treatment of drug users, that invoke the legal positions of the cescr Cttee and the cedaw Cttee, as well as the #allJobs4allWomen campaign launched by the adc Memorial, which was supporting the communication of Ms Medvedeva to the cedaw Cttee, with the aim of lifting discriminatory labour bans for women.¹¹⁹ Another salient example is the project of the All-Russian Society of the Deaf on translating crpd into the Russian sign language.¹²⁰

The interest of Russian scholars in the treaties is growing from year to year with crc and crpd being the most popular treaties used in their publications, followed by ccpr, cescr, cedaw, cat and cerd.¹²¹

4.2.4 Impact of State Reporting

For the majority of the recommendations of the treaty bodies, it is difficult to establish a direct link between these and the developments taking place in the state. One may note here more the contribution, rather than the concrete influence of the cos. The discernible contribution could be demonstrated mostly through chronological sequence and within the follow-up procedure. Among the examples of such impact are the 2017 amendments to Federal Law ‘On the Minimum Wage’ establishing the minimum wage in the amount of the worker’s minimum subsistence level (cescr Cttee cos); the steps taken to eliminate the cases of imprisonment as a penalty for defamation (HRCttee cos); and the adoption of an action plan for the socio-economic and ethnocultural development of Roma and subsequent establishment of implementing agencies, timelines, and monitoring processes for this plan (cescr Cttee and cerd Cttee cos).

However, a few examples of concrete measures where the influence of the treaty or the cos, being the motivators for the changes, could be identified are the following: the ratification of op-crc-ac in order to implement the cos of the crc Cttee; an update by the Ministry of Justice of the instructions for the organisation of the access system to detention centres to ensure prompt access of detained persons to a lawyer (cat Cttee cos); the adoption of the national strategy for women (2017–2022); and the revision of the list of restricted occupations and sectors for women (cedaw Cttee cos).

It seems that the cos of the HRCttee and the cescr Cttee demonstrate a lower impact than the treaty-specific committees. This could be due to the fact that these two committees cover many issues in their cos and, in this sense, it is difficult to see the impact of the lengthy list of the recommendations. Furthermore, their cos touch upon questions that are also covered by treaty-specific committees. Thus, a cumulative effect may take place, while it seems that the state’s attention to these questions increases when they are addressed by the treaty-specific committee, rather than the Covenant Committee. It seems that the committees with the strongest impact are the cedaw Cttee and crc Cttee,¹²² while the crpd Cttee has the potential to demonstrate a strong impact in the future when more concrete measures will be adopted in accordance with the action plan of activities on the implementation of its cos.

The important reason for the limited impact of the cos is the variance of the state’s position with the views of the Committees on a number of issues, some of which are of joint concern to two and more untbs. It also often is the case that no consensus on these issues is reached among state officials, civil society and citizens. Among such issues are the regulation of the activities of ngos acting as ‘foreign agents’ (cescr Cttee, HRCttee, cat Cttee, cerd Cttee); the protection of rights of lesbian, gay, bisexual and transgender (lgbt) persons (cescr Cttee, HRCttee); the lack of a separate article on ‘torture’ in Russian legislation (cat Cttee); the situation of domestic violence (HRCttee, cat Cttee, cedaw Cttee); and access to quality medical and rehabilitation services within the existing healthcare system for drug users (cescr Cttee, crpd Cttee).

Another noteworthy aspect is the linkage with the echr and the decisions of the ECtHR, which is demonstrated with regard to the cos of the HRCttee and cat Cttee, which could be both limiting or enhancing the impact of the cos.

4.2.5 Impact of Individual Communications

There were 69 communications lodged against Russia under ccpr; two under cerd; ten under cat; and eight under cedaw. The total number of communications under all treaties is 89. Russia was found in violation in 46 cases (39 under ccpr, three under cat and four under cedaw). The 2003 Decree of the government appointing responsible governmental bodies for cooperation with the treaty bodies provides the basis for the interaction of Russian authorities with the relevant committee during the consideration of the communication. However, no institutionalised or coordinated mechanism for the implementation of the views has been established in the country.

The state’s approach towards implementing the views could be demonstrated through its position regarding the views of the HRCttee. While the HRCttee is continuously pointing to the non-implementation of its views,¹²³ Russia insists on its position that the Committee does not have the functions of a court and its views are of a recommendatory nature.¹²⁴ The state advocates its sovereign right to choose how the views are to be fulfilled, with the recognition that they carry great weight and are taken seriously by its authorities.¹²⁵ In the state’s view, op1-ccpr contains no provisions on the obligation to inform the Committee on the measures taken to implement its views. That is why in many instances Russia does not present follow-up information to the Committee.¹²⁶

Noting that the treaty body database contains little information on the implementation of the majority of the views and the lack of information available to the authors of this chapter in that regard, it is difficult to provide an assessment of the real state of affairs with regard to the implementation status of the views in the country. The authors of the communications most often point to the state’s refusal to carry out a proper investigation or reopen the procedures, or to pay compensation, while the state stresses that the author’s allegations and the Committee’s conclusions after particular scrutiny may not be proved, and the state’s conclusions remain the same.

The impact of the individual communications procedure is demonstrable in two cases considered by the HRCttee (Khoroshenko v Russia and Kostin v Russia)¹²⁷ and one case by the cedaw Cttee (Medvedeva v Russia).¹²⁸ These cases reveal a positive tendency in the practice of Russian higher and lower courts of finding legal grounds for revising judicial acts the basis that treaty body views constitute new circumstances or facts. While the Russian legislator is not yet ready to regulate the legal status of the views of the committees, these progressive legal positions of Russian courts have the potential to be confirmed and developed in subsequent judicial practice with regard to the views of any treaty body whose competence to consider communications was recognised by Russia. The case of Medvedeva v Russia showed a deeper impact in the country due to the efforts of the Ministry of Labour and Social Protection that were prompted, inter alia, by civil society,¹²⁹ resulting in the revision in 2019 of the list of restricted occupations and sectors for women.¹³⁰

5.1.1 Incorporation and Reliance by Organs of State

The state stresses that the prohibition of racial discrimination is one of the staple provisions of the Russian Constitution¹³¹ and that anti-discrimination principles enshrined in the Constitution have been systematically incorporated in different branches of law governing the protection of human rights in education, labour, health care, the courts, social protection and culture. This set of laws together with the Constitution and the Criminal Code constitutes comprehensive anti-discrimination legislation.¹³² However, the Committee notes that such legislation covers only limited spheres of life and is not compliant with the requirements of article 1 of cerd.¹³³ The Committee also points to a lack of comprehensive anti-discrimination legislation containing a definition of all forms of racial discrimination covering all fields of law and public life.¹³⁴ Thus, the provisions of the Convention have been partially incorporated into Russian legislation.

The state has adopted various strategies/policies that are related to the issues covered by cerd, but these documents do not contain a direct reference to the Convention.¹³⁵ They generally mention that they are adopted in accordance with the international treaties of Russia in the specific area. One example of direct reference to cerd was found, namely, the federal target programme ‘Strengthening the unity of the Russian nation and the ethnocultural development of the peoples of Russia (2014–2020)’.¹³⁶ The programme mentions that ensuring ethnocultural diversity is in line with international obligations of the Russian Federation, enshrined in particular in cerd and the Council of Europe Framework Convention for the Protection of National Minorities.

In 2015 a new mechanism – the Federal Agency for Ethnic Affairs (fadn) – was established to, among others, analyse the implementation by the Russian Federation of international obligations in accordance with multilateral legal acts relating to the elimination of racial discrimination, and to prepare draft national reports of Russia in this area.¹³⁷ Thus, the fadn is the state body mandated to monitor implementation of cerd and to cooperate with the cerd Cttee.

5.1.2 Reliance by Judiciary

In its 23th to 24th periodic reports Russia mentioned that all Russian courts are guided in their work by the Convention and ‘routinely hear criminal, civil and administrative cases involving racial discrimination’.¹³⁸ However, the Committee in its 2017 cos noted that no concrete examples of court cases in which the Convention’s provisions were applied were provided by the state.¹³⁹ Court practice after that reveals examples of direct reference to the Convention and the interpretations of the cerd Cttee. Thus, references to the Convention provisions (article 4) may be found in the practice of lower courts with regard to defining the grounds of race or nationality as the cause of violence, persecution or real risk of persecution.¹⁴⁰ There are also references to the Convention in the cases dealing with the refusal to grant asylum/refugee status in Russia.¹⁴¹ When considering cases on expulsion of persons to the states where there are possibilities for that person to be subjected to ill-treatment and political persecution, certain courts refer to the periodic reports and cos as a source of information.¹⁴²

5.1.3 Impact on and through Independent State Institutions

The Ombudsman in its activities deals with complaints of racial discrimination and intolerance and monitors information on possible manifestations of racial discrimination. However, it is unclear whether the nhri uses cerd and the Committee’s legal positions in these activities. In the High Commissioner’s view, there is a stable situation in the sphere of interethnic relations and a tendency to decrease in cases of xenophobia and racial intolerance is revealed.¹⁴³ The High Commissioner became actively involved in the consideration of periodic reports of Russia by the cerd Cttee in 2018, when she presented her first report¹⁴⁴ and her representative met the Committee during its session in Geneva.¹⁴⁵ Subsequently, in her 2018 annual report the Ombudsman opposed the Committee’s cos that manifestations of racism remain deeply rooted among football fans in Russia, by noting that during the 2018 World Cup, conflict situations related to racial discrimination were nullified, and the rights and security of both Russian citizens and arrived guests were maximally respected.¹⁴⁶

5.1.4 Impact on and through Non-state Actors

The examples of direct reference to the Convention and the interpretations of the cerd Cttee in courts may lead to the conclusion that practising lawyers use the treaty in their arguments. However, this does not reveal the actual picture of the awareness and use of cerd by the legal profession.

There are a few ngos that deal with issues of racial discrimination in Russia and that are actively submitting alternative reports to the Committee.¹⁴⁷ These ngos may rely on the Convention in their activities, for instance, when conducting research in places of compact gypsy settlements and providing assessment of the practice of segregation in education faced by Roma children¹⁴⁸ or organising workshops/seminars on the educational problems of Roma in Russia.¹⁴⁹ Some ngos also develop proposals for narrowing the definition of extremist activity in the anti-extremist legislation and to abolish the federal list of extremist materials, which are in line with the Committee’s recommendations, although it is unclear whether these ngos refer to the Convention and the Committee to support these initiatives.¹⁵⁰

Russian academics do not pay much attention to cerd and its application in Russia. The majority of publications deal with the perspectives and the analysis of the case Ukraine v Russian Federation¹⁵¹ in the International Court of Justice;¹⁵² a few publications refer to the Convention in the context of elimination of extremism¹⁵³ and the right of indigenous peoples to marine resources.¹⁵⁴

5.1.5 State Reporting and Its Impact

The documents related to the follow-up procedure reveal a few examples of the impact of cos. A certain impact is thus demonstrated in the area of fighting intolerance or incitement to hatred fueled by officials. In its follow-up report the state demonstrated legislative developments in the area of establishing mandates and responsibilities of governmental and municipal bodies at all levels and civil servants in the area of inter-ethnic relations and ensuring equal and fair treatment of all physical and legal persons.¹⁵⁵ In its follow-up letter sent to the state the cerd Cttee ‘applauded the state party for increased legislative protections against interethnic and interreligious discrimination’.¹⁵⁶

A possible impact could be demonstrated through the elaboration of the draft law on invalidating article 282 of the Criminal Code ‘inciting hatred or hostility, and humiliation of human dignity’ in 2018 due to the fact that its corpus delicti is vague and the article may be applied arbitrarily for political ends.¹⁵⁷ This initiative is in line with the Committee’s earlier recommendation to amend the definition of extremism in article 282 of the Criminal Code to ensure that it is clearly and precisely worded.¹⁵⁸ However, the Convention and the cerd Cttee were not mentioned in the documents related to the consideration of the draft law in the state Duma. The law was not approved by the state Duma due to the opposing view on this issue expressed by the authorised State Duma Committee, the government and the Supreme Court.¹⁵⁹

One of the issues that the Committee is regularly looking at is the realisation of indigenous peoples’ rights. Notwithstanding the developments, welcomed by the Committee,¹⁶⁰ a number of issues remain the subject of concern,¹⁶¹ which are also confirmed by the Russian human rights experts working in this area, including the absence of federally-protected territories and the lack of compliance with the requirement of free, prior and informed consent of indigenous peoples.¹⁶² Among the various reasons for such concerns, experts mention that the treaty body does not take into account the specifics of the country approach,¹⁶³ the absence of the coordinated structure for the implementation of treaty bodies’ recommendations and the low level of awareness about them among the relevant state bodies.¹⁶⁴ The other reason is the Russian position of non-endorsement of the 2007 UN Declaration on the Rights of Indigenous Peoples, which prevents certain action in ensuring the rights of indigenous peoples’.¹⁶⁵

5.1.6 Individual Communications and Their Impact

There were two registered communications against the Russian Federation, which were found inadmissible.¹⁶⁶ However, although the Committee considered that it was not within its competence to examine the first communication, it noted the racist and xenophobic nature of the actions of the identified author of the offensive leaflets that were directed against the native Roma community and reminded the state of its obligations under cerd to ‘prosecute ex officio all statements and actions which attempt to justify or promote racial hatred and discrimination in any form, regardless of whether or not there was a formal request from the alleged victim(s) to initiate criminal proceedings under article 282 of the Criminal Code’.¹⁶⁷ The Committee also encouraged Russia to follow-up on its cos regarding combating racially-motivated violence against the Roma.¹⁶⁸ The state was afterwards continuously building dialogue within the reporting procedure on the measures it is undertaking in this area.

5.1.7 Brief Conclusion

A certain impact could be demonstrated through the judiciary due to the presence of examples of court cases with direct reference to cerd and the cerd Cttee documents as well as the activities of the nhri and ngos.¹⁶⁹ The state is constantly developing dialogue with the Committee within the reporting procedure on many issues. However, a direct link between the Committee’s cos and the developments in the state is difficult to establish. A few examples of discernible linkage are demonstrated through the follow-up procedure and due to chronological sequence. Among the factors limiting the impact of the treaty is a difference in the approaches of the state and the Committee on some issues, in particular on introducing a more exact definition of extremism in the Russian legislation, reviewing the laws on ‘foreign agents’, and the adoption of comprehensive anti-discrimination legislation.

5.2.1 Incorporation and Reliance by Organs of State

Most of the rights and freedoms guaranteed in ccpr are introduced in Part ii of the Constitution. Some experts mention that the Constitution lacks such ccpr rights as freedom from slavery and servitude and equality before the law.¹⁷⁰ In its fourth periodic report to the Committee Russia demonstrated how the ccpr provisions (article by article) are reflected in Russian legislation.¹⁷¹ However, the reliance is rather indirect. ccpr is directly mentioned in two laws: the Federal Constitutional Law ‘On the State of Emergency’¹⁷² and the Federal Law ‘On ratification of the European Convention on Extradition, the Additional Protocol and the Second Additional Protocol to it’.¹⁷³ While Russia develops a large number of policies and programmes that are related to the issues covered by ccpr and the Committee’s cos, these policies are not directly based on the treaty.

5.2.2 Reliance by Judiciary

The databases of the court practice available to the authors revealed a large number of court decisions (around 305 647)¹⁷⁴ where references to ccpr were made. The text below contains examples of the application of the treaty provisions and interpretations that are most frequently referred to by the courts. Russian higher and lower courts tend to rely on the provisions of ccpr as a source of interpretation. Most often there are references to article 7 (freedom from torture),¹⁷⁵ article 12 (right to liberty of movement),¹⁷⁶ article 14 (equality before the court),¹⁷⁷ and article 19 of the Covenant (freedom of expression).¹⁷⁸ The higher courts also developed a practice of applying the General Comments of the HRCttee as a guide to interpretation. Specifically, the Constitutional Court relied on the General Comment on the right to freedom of movement¹⁷⁹ and the General Comment on the right to vote.¹⁸⁰ The Supreme Court of Russia has appealed to the General Comment on the right to equality before courts and tribunals and to a fair trial.¹⁸¹

Referring to the jurisprudence of the HRCttee, the courts do not give specific comments on a particular decision, but simply confirm the existence of such decisions, often in terms of the plaintiff’s plea to recognise a particular legal position of the Committee in cases dealing with the extradition of persons to another state or granting temporary asylum,¹⁸² and cases concerning the rights of sexual minorities and their right to peaceful assembly.¹⁸³ Finally, the Committee’s jurisprudence is also applied as the source of a remedy in cases where the Russian courts supported the applicant’s reference to the Committee’s decision in his plea for reviewing a court decision on the basis of ‘new circumstances’.¹⁸⁴

5.2.3 Impact on and through Independent State Institutions

The Ombudsman frequently refers to the provisions of ccpr when giving a legal assessment to various situations of violations of rights of Russian citizens inside and outside Russia.¹⁸⁵ The website of the High Commissioner informs the public about the possibility to file a complaint to the HRСttee and shows the difference between the work of the ECtHR and the Committee.¹⁸⁶ In 2010 the Ombudsman suggested to the state Duma to endorse a legal norm in the Code of Civil Procedure for reconsidering the court decision on the basis of the decisions of the ECtHR and the HRCttee.¹⁸⁷ The High Commissioner is also actively involved in raising awareness of ccpr and the Committee through supporting and organising various conferences and seminars, including on the occasion of the anniversary of the adoption of the two international Covenants¹⁸⁸ and within the framework of the joint Master’s Programme ‘International Protection of Human Rights.’¹⁸⁹

5.2.4 Use by Non-Governmental Actors

It is difficult to provide an actual assessment of the use of the treaty by the lawyers due to a lack of information. No concrete examples of professional training organised for the lawyers and dealing specifically with the implementation of the Covenant and the legal positions of the Committee were found. Since there is an understanding that the courts in their decisions tend to refer to the provisions of the international treaty when the lawyers use these in their argumentation before these courts, it seems that the use of ccpr is quite high due to the fact that the number of the court decisions applying ccpr is the largest compared to other UN human rights treaties (as the statistics showed).

ccpr and its provisions are rarely mentioned and used by ngos in framing their activities in Russia. However, the ngos actively participate in sessions of consideration of periodic reports of Russia in the HRCttee. Particularly, they present their own alternative reports and even commentaries to the Committee’s follow-up documents.

Russian scholars publish articles, monographs and textbooks, outlining the history of the adoption of the Covenant, the practice and problems of its application in Russia, including implementation of the cos and the decisions of the HRCttee.¹⁹⁰ Russian universities also host scientific conferences devoted to ccpr together with cescr which are followed by the publication of conference proceedings.¹⁹¹ These conferences and their publications are mostly focused on the fiftieth anniversary of the Covenants.¹⁹²

5.2.5 State Reporting and Its Impact

As to the examples of impact, in 2003 the Committee welcomed the establishment of the position of the High Commissioner for Human Rights in accordance with Federal Constitutional Law 1 of 26 January 1997, which was ‘in line with the Committee’s previous recommendations’.¹⁹³

The Ministry of Justice as a body responsible for the cooperation with the HRCttee stressed that it attempts to implement its international human rights obligations, including in relation to the realisation of the cos, in good faith. Thus, referring to the eight periodic report of Russia submitted in April 2019, the Ministry provided an example of measures taken to improve the legislation on combating extremism in response to the previous cos (paragraph 20).¹⁹⁴ Specifically, a new version of article 282 of the Criminal Code was adopted by Federal Act No 519-fz of 27 December 2018, ‘to rule out criminal responsibility for one-off offences of inciting hatred or enmity or degrading a person or group of persons that do not seriously endanger the foundations of the constitutional system and state security’.¹⁹⁵ However, in paragraph 20 of the cos, the HRCttee urged the state to clarify the vague definition of ‘extremist activity’ in the Federal Law on Combating Extremist Activity and to ensure that article 280.1 of the Criminal Code (public calls for action aimed at violating the territorial integrity of the state) is applied in consistency with the state party’s obligations under article 19 of ccpr.¹⁹⁶ Although the introduced amendments in article 282 aimed at ‘limiting the number of absurd convictions that are strongly criticised by the journalists and human rights organisations’,¹⁹⁷ which is in line with the HRCttee’s concerns, the direct link between the amendment and the content of the cos is not clearly evident.

A certain impact may be demonstrated through the assessment by the Committee within the follow-up procedure of the steps taken in the state to eliminate the cases of imprisonment as a penalty for defamation (article 128.1 of the Criminal Code).¹⁹⁸ The HRCttee welcomed the absence of any custodial sentences for defamation between 2013 and mid-2015, and evaluated this situation with an assessment ‘B (Reply/action partially satisfactory)’ but, due to the state’s refusal to reconsider decriminalising defamation, additional information was required by the Committee on the number of convictions under article 128.1.¹⁹⁹

The reason why the majority of recommendations of the HRCttee, selected for follow-up, remained unimplemented in view of the Committee (assessment C Reply/action not satisfactory)²⁰⁰ is the differing opinion of the state on these issues. Among the examples are the denial by the state of the practice of collective punishment of relatives and suspected supporters of alleged terrorists that took place in the past in the North Caucasus²⁰¹ and, thus, the non-provision of the information by the state on the remedies granted to victims of these actions;²⁰² the position of the state that the legislation requiring non-commercial organisations receiving foreign funding and engaging in ‘political activities’ to register as ‘foreign agents’,²⁰³ is intended to ensure greater transparency and openness in the activities of such organisations and does not preclude them from participating in political activities or discriminate against them;²⁰⁴ the view of the state that the recognition of the special rights of persons with non-traditional sexual orientation cannot be subject to international legal regulation and should be decided in accordance with the cultural and moral traditions of states²⁰⁵ and that ‘discrimination on the grounds of sexual orientation or gender identity is prohibited, as is any other form of discrimination’ in Russia.²⁰⁶

5.2.6 Individual Communications

Sixty-nine communications were lodged against Russia since the entry into force of op1-ccpr in 1992. The HRCttee found that there was a violation of the provisions of the Covenant in 39 cases.²⁰⁷ The majority of communications deal with the violation of the right to a fair hearing by an impartial tribunal (article 14) and setting aside a court sentence.²⁰⁸

Since 2003 the HRCttee has regularly demonstrated concerns over the non-implementation of its views by Russia. Russia is constantly recommended to review its position in relation to the Committee’s views and to comply with all of these.²⁰⁹ As some experts state, Russia may be in the list of states that ‘have persistently failed to cooperate with the hrc’²¹⁰ within the communications procedure. Russia is following a position that ccpr does not contain provisions on the legal status of views adopted by their treaty bodies and that ‘it is the sovereign right of the state to choose how the Committee’s views as well as international legal obligations are to be fulfilled’.²¹¹ Russia pointed out that ‘the Committee does not have the functions of a court or a body endowed with quasi-judicial powers, and it is for that reason that its decisions are termed “views” and are of a recommendatory nature’.²¹² The views ‘carry great weight and are taken seriously by the Russian authorities, who are unable to ignore them, even where they are at variance with the Russian approach’.²¹³

Each communication is forwarded by the Ministry of Foreign Affairs (mfa) to the Ministry of Justice, which prepares its position on the admissibility and merits on the basis of materials received from competent state authorities (the Supreme Court, the General Prosecutor, the Investigative Committee and the Federal Penitentiary Service) and their conclusions, and forwards this position to the Committee through the mfa.²¹⁴ In many cases Russia is not presenting the follow-up information to the Committee due to its position that op1-ccpr contains no provisions on the obligation of states to inform the Committee on the measures taken to implement its views. This information may be presented by the state during its periodic review upon the request of the Committee.²¹⁵

The treaty body database contains information on the implementation of only six decisions against Russia.²¹⁶ Certain information on the follow-up to three other cases was presented by Russia within the reporting procedure.²¹⁷ For the majority of these cases it is unclear whether the HRCttee continued or suspended the follow-up dialogue. The Committee’s follow-up reports on some communications against Russia contain only information presented by the authors with the state’s submission being absent.²¹⁸ The authors most often claim that they were not provided with an effective remedy due to the state’s refusal to carry out a proper investigation, reopen the procedures, or to pay compensation.²¹⁹ The state may have a differing position stating that notwithstanding the detailed consideration of the case in the light of the Committee’s view, the author’s allegations may not be proved and the state’s conclusions remain the same,²²⁰ or the investigative activities with regard to the author’s claims are still ongoing and the results will be clear at a later stage.²²¹ There are cases when Russia found the Committee’s conclusions of a violation of the author’s rights groundless.²²² In a few cases where no information from the author is accessible within the reporting procedure or within follow-up procedure, the state may inform the Committee that it implemented the decision.

In the case of Lantsova v Russian Federation,²²³ the HRCttee found that Russia had failed to take appropriate measures to protect Mrs Lantsova’s son’s life as a result of confinement under conditions unfit for human survival. In the state’s reply to the list of issues it was stressed that in order to increase the effectiveness of medical care for suspected, accused and convicted persons, a joint order of the Ministry of Health and Social Development and the Ministry of Justice ‘on the organisation of medical care for persons serving a sentence in places of detention and imprisoned’²²⁴ was issued in 2005. It remains unclear whether the author was granted compensation or an official inquiry into the death of Mr Lantsov was initiated.²²⁵

Russian authorities refer to the case Khoroshenko v Russian Federation²²⁶ as a positive example of implementation of the Committee’s views.²²⁷ Mr Khoroshenko appealed to the Prosecutor General’s Office and the Russian courts to re-examine his criminal case on the basis of the Committee’s finding that his criminal conviction and death penalty were based on an unfair trial, torture and arbitrary detention. His claims were not successful due to the understanding of these authorities that the HRCttee’s views do not constitute the grounds for review of judicial decisions. The author then applied to the Constitutional Court, which in 2012 refused to satisfy the claim since the disputed legal provisions do not exclude the possibility to reinstitute the criminal proceedings on the basis of the HRCttee’s view. The Court found that such views are considered sufficient grounds for a procurator to issue an order to institute proceedings in view of new circumstances, if the violations of the Covenant identified by the Committee could be corrected by no other means.²²⁸ On the basis of this ruling, Mr Khoroshenko appealed against the previous decisions of the Prosecutor General’s office and requested that the prosecutor be ordered to issue a ruling on the issue of initiation of proceedings in view of the new circumstances. By a decision of the Tverskoy District Court of Moscow of 19 April 2013, the complaint was denied. However, in 2014 the appellate court reversed the decision and sent the materials of the complaint for new judicial review.²²⁹ This fact was not included in the 2014 follow-up report of the Committee on this case. On the basis of the author’s submission of 12 June 2016 that the state party had failed to implement the views, the Committee suspended the follow-up dialogue with a note of unsatisfactory implementation due to no follow-up report received after the reminders (assessment criteria D).²³⁰ In its 2015 cos the HRCttee still demonstrated concern over the state party’s ‘failure to implement the views adopted by the Committee … despite decision No 1248–0 of 28 June 2012 of the Constitutional Court designed to facilitate their implementation’.²³¹

The most recent example of the implementation of the Committee’s views is the case of I Kostin,²³² where the Committee found the violation of the author’s right to defence during cassation proceedings of his criminal case due to failure to inform him of his right to legal aid. The Supreme Court in its decision of 10 October 2018²³³ supported the finding of the Committee and ordered the case to be transferred to a new cassation hearing, as was recommended by the Committee.

5.2.7 Brief Conclusion

A strong impact is demonstrated through the judiciary. Among all UN human rights treaties, ccpr is the treaty with the largest number of references in the court practice. The higher and lower courts directly refer to the provisions of the treaty and the HRCttee’s General Comments as a guide to interpretation. In 2012 both the Constitutional and Supreme Courts started to rely on the views as the source of a remedy. A certain impact is also demonstrable through the Ombudsman’s activities, ngos, who are active in preparing and submitting alternative reports to the Committee, as well as through researchers and academic institutions. The state is constantly developing dialogue with the Committee within the reporting procedure on many issues. However, a direct link between the Committee’s cos and the developments taking place in the state is difficult to establish. A certain impact may be demonstrated through the positive assessment by the Committee of the steps taken to eliminate the cases of imprisonment as a penalty for defamation.

Among a total number of the 39 views revealing violations of ccpr, the impact of the communications procedure is demonstrable in two cases, namely, Khoroshenko v Russian Federation and Kostin v Russian Federation. The first case is remarkable due to the recognition by the Constitutional Court that the Committee’s views constitute sufficient grounds for a procurator to issue an order to institute criminal proceedings in view of new circumstances. In the second case the Supreme Court followed the position of the Committee and ordered to transfer the criminal case to a new cassation hearing. The key factor limiting the impact of the treaty is that the majority of cos, selected for follow-up (human rights violations in the North Caucasus, the legislation on ‘foreign agents’, discrimination against lgbt persons) remained unimplemented due to the conceptual differences in the approaches of the state and the Committee on these issues.

Another aspect where the approaches of the HRCttee and the state are at variance is the implementation of views. While the Committee is stressing the non-implementation of its views, Russia advocates its sovereign right to choose how the views are to be fulfilled with the recognition that they carry great weight and are taken seriously by its authorities. In the state’s view, op1-ccpr contains no provisions on the obligation to inform the Committee on the measures taken to implement its views. Another issue is the general lack of information on the implementation of the views by Russia in the treaty body database. For the majority of cases it is unclear whether the HRCttee continued or suspended the follow-up dialogue.

A factor that could be both enhancing and limiting the impact of ccpr is the linkage with the echr and the decisions of the ECtHR. The developments taking place in the areas of joint concern of the ECtHR and the Committee are motivated mostly by the ECtHR. The HRСttee itself draws the linkage with the ECtHR when raising questions of the implementation of ECtHR’s judgments (for instance, Ananyev and Others v Russia) in its list of issues, including in relation to improving conditions of detention. The state also draws this connection when demonstrating the developments in ensuring the right to legal proceedings within a reasonable time through mentioning the steps taken to comply with the relevant decisions of the ECtHR (Burdov v Russia).

5.3.1 Incorporation and Reliance by Organs of State

As some commentators consider, the drafting of the catalogue of economic, social and cultural rights in the Constitution has been influenced by the universal human rights standards, including the Covenant.²³⁴ The Constitution guarantees the majority of the rights set forth in the Covenant, including labour rights, the right to social security, housing, health care, education, as well as the right to take part in cultural life.²³⁵ Certain provisions of the Covenant have not received the status of constitutional norms, such as the right to assistance for the family and the right to an adequate standard of living (except for the right to housing).²³⁶ One of the most visible results of the incorporation of the Covenant is the adoption of the Labour Code, which ‘was inspired directly by provisions of the Covenant, as well as other pertinent international instruments, including of the International Labour Organisation (ilo)’.²³⁷

In its cos adopted since 2003 the cescr Cttee has been welcoming the adoption of various strategies/policies in the state that are related to the issues covered by cescr.²³⁸ However, these strategies do not contain direct relevance to the Covenant. They generally mention that these are adopted in accordance with the international treaties of Russia in the specific area. The authors have found one strategy with direct reference to cescr – the strategy of actions in the interests of the citizens of the older generation in the Russian Federation until 2025, which was developed in line with a number of national strategies and the Universal Declaration and international treaties, including cescr.²³⁹

In its cos adopted since 2003 the cescr Cttee has been welcoming a number of institutional measures undertaken in the state, such as the establishment of the Ministry of Regional Development, the Interdepartmental Commission on Equality between Men and Women, and the Presidential Commissioner for Children’s Rights. However, it seems doubtful that these measures were taken primarily to comply with cescr.

The state continuously undertakes steps to the provision of the financial and human resources within the implementation of a variety of policies and legislation in such fields, such as combating corruption, poverty, women’s rights, housing, education and health. As the Committee noted, notwithstanding the unilateral coercive measures, the state party was able ‘to maintain the level of public spending to implement its obligations under the Covenant’.²⁴⁰ What is challenging, though, for the state is the equal distribution of resources across the regions and the imperfection of the flat-rate tax system with regard to fighting social inequalities and its inadequacy in maximising the available resources.²⁴¹

5.3.2 Reliance by Judiciary

The databases of the court practice available to authors revealed a large number of court decisions (around 20 000) where references to cescr were made. Due to the impossibility to read all these decisions the authors analysed the examples of application of cescr provisions that are most frequently referred to by the Russian courts. Russian higher and lower courts tend to follow the provisions of cescr as a guide to interpretation. The most frequently-mentioned provisions of cescr are those concerning the right to an adequate standard of living (article 11),²⁴² often referred to together with the right to the enjoyment of the highest attainable standard of physical and mental health (article 12);²⁴³ the right to strike (article 8);²⁴⁴ the right to the enjoyment of just and favourable conditions of work, particularly remuneration for work (article 7(a));²⁴⁵ the right to education (article 13),²⁴⁶ and, more frequently, the right to housing.²⁴⁷

The General Comments of the Committee have been applied to by the Russian Supreme Court, which recognised the health status, in particular the hiv status, as a ground for discrimination in line with the General Comment 20.²⁴⁸ General Comment 20 has also been referred to by the lower courts in relation to the definition of ‘discrimination’ and issues related to the right to health.²⁴⁹

5.3.3 Impact on and through Non-state Actors and Independent State Institutions

In its cos in 2017 the Committee, while noting the information provided by the delegation on the application of the Covenant by national courts, was concerned about ‘the small number of instances in which the provisions of the Covenant were invoked before, or applied by, such courts’.²⁵⁰ In this respect the state was recommended to ‘enhance training for judges, lawyers and public officials on the Covenant and undertake awareness-raising campaigns among them about the obligation to give effect to Covenant rights’.²⁵¹ Thus, in the Committee’s view the extent of reliance on cescr in the courts by lawyers was rather low. Nonetheless, there are cases of references to the provisions of the Covenant in the statements by some representatives of bar associations and lawyers.²⁵² However, this does not reveal the actual picture of the awareness and use of cescr and the Committee’s jurisprudence by the legal profession.

Among ngos that use the treaty and the Committee’s jurisprudence in their activities are mostly those that provide reports to the treaty bodies. In 2017 the Russian movement ‘Silver rose’, which protects the rights of sex workers in Russia, appealed to the President of Russia, the government and the High Commissioner with a request to abolish the administrative punishment for prostitution, which is the basis for acts of violence committed by police officers against women who are engaged in these activities as well as constituting a factor that prevents these women from receiving adequate medical services, including medical treatment for hiv. The ngo was using the provisions of the Covenant and the recommendations of the cescr Cttee and cedaw Cttee in the legal argumentation of this request.²⁵³ Another example is the petition submitted to the President of the Russian Federation by Andrey Rylkov Foundation for Health and Social Justice with a view to implement the cos of the cescr Cttee concerning the introduction of substitution therapy programmes for the treatment of drug users.²⁵⁴

Russian law and non-law academics use cescr in their research on various aspects of universal and regional protection of economic, social and cultural rights. Certain works, including PhD theses, deal with the judicial protection of these rights,²⁵⁵ specific rights (the right to health, the right to education, cultural rights, and the right to social security).²⁵⁶ Some works cover issues of functioning of universal and regional human rights mechanisms,²⁵⁷ international protection of economic, social and cultural human rights in general and the protection of these rights in relation to vulnerable groups.²⁵⁸

Russian universities also host scientific conferences devoted to cescr that are followed by the publication of conference proceedings.²⁵⁹ These conferences and their publications are mostly focused on the fiftieth anniversary of the adoption of ccpr and cescr.²⁶⁰

The Ombudsman frequently refers to the provisions of the Covenant in his or her annual reports, specifically with regard to the problem of the level of a minimum wage being below the subsistence level in Russia. In the High Commissioner’s view, this situation contradicts the Covenant.²⁶¹ The Commissioner referred to the cos of the cescr Cttee in her 2017 annual report,²⁶² where she shared the Committee’s concern on amendments to the Criminal Code that decriminalise a first offence of domestic violence.²⁶³ Although not explicitly referring to the view of the Committee, the High Commissioner criticises the law on the decriminalisation of beatings, which is in line with the position of the Committee on this matter.²⁶⁴

5.3.4 Impact of State Reporting

Since 2003 the cescr Cttee has been concerned with the low level of the minimum wage which for a long time remained well below the minimum subsistence level²⁶⁵ and has been recommending to the state to ensure the implementation of article 133 of the Labour Code which, in line with the Covenant, stipulates that the minimum wage must not be lower than the worker’s minimum subsistence level.²⁶⁶ In its 2017 cos the Committee noted the drafting of a Bill to raise the minimum wage rate to subsistence level and urged the state party to adopt this Bill.²⁶⁷ The amendments of 28 December 2017 to article 1 of the Federal Law of June 19 2000 N 82-ФЗ ‘On the Minimum Wage’ later stipulated that starting from 1 January 2019 and then annually from 1 January, the minimum wage is established in the amount of the the worker’s minimum subsistence level at the level of the ii quarter of the previous year.²⁶⁸ However, it is unclear what the key motivation was for the state authorities to introduce these developments. The verbatim records of the parliamentary debates concerning the adoption of these amendments reveal only a reference to the requirements of the ilo.²⁶⁹

Since 2001 the Committee has been concerned with the situation of Roma rights and among other measures encouraged the state party to adopt a national programme of action for the promotion of the economic, social and cultural rights of Roma, and to allocate sufficient resources for its effective implementation.²⁷⁰ In its sixth periodic report Russia mentioned a comprehensive plan for the social, economic, ethnic and cultural development of Roma in the Russian Federation over the period 2013–2014.²⁷¹

It is difficult to identify any concrete legal reform that was prompted directly by the recommendations of the Committee. For example, since 2003 the Committee has regularly encouraged Russia to adopt the draft Federal law ‘On State Guarantees of Equal Rights and Freedoms, and Equal Opportunities, for Men and Women in the Russian Federation’. However, this Law was developed more in line with cedaw, rather than cescr.

As an example of the issues the Committee is continuously concerned about, one could refer to the problem of health care for drug users, which was selected within the follow-up procedure. The Committee is concerned over the punitive approach of the state to address drug problems and the lack of rehabilitation programmes, in particular the prohibition of opioid substitution therapy (ost).²⁷² In its follow-up report the state responded that ost is ‘not intended to eradicate it, ie ending drug use and overcoming drug dependence’, and ‘is in fact the replacement of one addiction with another.’²⁷³ ost using such psychoactive substances is prohibited under Russian legislation in line with relevant international conventions.²⁷⁴

In its submission concerning the follow-up report of Russia the Russian Public Mechanism for Monitoring of Drug Policy Reform argued that the Russian system of drug treatment ‘discourages people who use drugs from seeking medical help, prevents patient access to health information, and ultimately drives the hiv and tb epidemics in Russia’.²⁷⁵ The organisation also informed the Committee that during 2018 in response to its requests concerning their plans to implement paragraph 51 of the cos the relevant Russian authorities demonstrated no plans to implement the recommendations.²⁷⁶

5.3.5 Brief Conclusion

The Covenant has influenced legislation, and the majority of the provisions of the treaty were incorporated into the Constitution. The Labour Code was inspired directly by the provisions of the Covenant, together with ilo Conventions. The strong impact of the treaty is demonstrated through widespread reliance of Russian higher and lower courts on the provisions of cescr and its General Comments as a guide to interpretation. A certain impact is ensured through non-state actors. The activities of the High Commissioner also demonstrate a discernible impact of the Covenant. There are also concrete examples of the use of the Committee’s cos by ngos in their initiatives.

With regard to factors limiting the impact of cescr it seems relevant to reflect the position of the Ombudsman on the causes of the violations of socio-economic rights in Russia. She determined the three factors, namely, maladministration, inadequacy of legislation (legal gaps) and a decline in funding in a number of industries due to the Western sanctions imposed on Russia.²⁷⁷ This is a relevant position and it clarifies some of the possible factors that limit the impact of the treaty.

The state is developing a dialogue with the Committee regarding the large number of recommendations it receives from cycle to cycle and provides relevant information requested by the Committee with regard to its recommendations. However, it is difficult to see the impact of the lengthy list of recommendations. The developments taking place in the state in the area of the application of the treaty are hardly directly caused by the treaty and the cescr Cttee recommendations. This is partly due to the fact that cescr, compared to other specific treaties, covers a wide range of issues that are also covered by other human rights treaties, to which Russia is a party. Almost no particular reference to the treaty or the Committee is made in the strategies, laws or parliamentary debates. It is more that the connection to ilo Conventions and the cedaw Cttee recommendations is visible in these developments. This link may be seen as a factor enhancing the impact of cescr due to the cumulative effect of the recommendations of various international mechanisms in such areas of common concern as discrimination of women in the spheres of labour, domestic violence, and violence and discrimination against women engaged in prostitution. On the other hand, it is clear that the state pays more attention to the recommendations of the committees monitoring specific treaties than the cescr Cttee. This situation may be also due to the lack of dissemination of the treaty provisions and the recommendations of the cescr Cttee among the relevant state representatives and non-state actors and thus the low level of awareness.

5.4.1 Incorporation and Reliance by Organs of State

In its first periodic report the ussr claimed that ‘the ratification of the Convention does not create any need for new legislative measures in the ussr, since all the requirements of the Convention have either already been implemented or are being implemented in the ussr, and the relevant legislation has a long history of application’.²⁷⁸ The provision of article 2 of cedaw²⁷⁹ was subsequently fully incorporated in article 19(3) of the Russian Constitution enshrining the principle of equality of rights and freedoms of man and woman.²⁸⁰ This principle is also enshrined ‘everywhere’²⁸¹ in the Russian legislation: labour law;²⁸² regulation of activities of political parties;²⁸³ education;²⁸⁴ civil service;²⁸⁵ and service in bodies of internal affairs.²⁸⁶ However, this legislation does not cite the Convention directly. The 1993 Decree of the President of the Russian Federation ‘On the priorities of the state policy on women’ provided for the recognition of the state policy on the protection of women’s rights as one of the priority areas of the state’s social and economic policy ‘in connection with the obligations of Russia under the cedaw’.²⁸⁷

While the National Strategy for Women for the period 2017–2022 does not directly refer to the Convention in its text, its adoption was motivated by the cos of the cedaw Cttee.²⁸⁸ The strategy was followed by the plan of activities for 2019–2022, which included the preparation of the periodic report of Russia to the cedaw Cttee by the relevant state bodies, listed in this plan, with the deadline in 2019.²⁸⁹

5.4.2 Reliance by Judiciary

Court practice of applying cedaw is not extensive. Among all core human rights treaties, it is the treaty with the smallest number of decisions with direct references to its text. Nevertheless, in most of such court cases questions concerning cedaw arise from labour disputes. In such cases the courts most often tend to refer to the definition of discrimination against women provided in the Convention.²⁹⁰

The courts sometimes also refer to the jurisprudence of the Committee in cases against Russia as a guide to interpretation.²⁹¹ One case of application of the Committee’s jurisprudence as the source of a remedy was identified. In 2017 the Supreme Court found²⁹² that the 2016 cedaw Cttee’s opinion indicating gender discrimination against the applicant (S Medvedeva)²⁹³ should be enforced in the Russian Federation and may be regarded as a new circumstance in relation to the provisions of the Code of Civil Procedure for revising a court decision by analogy to the legal consequences of the views of the HRCttee determined by the Constitutional Court in the case of Mr Khoroshenko.²⁹⁴ On the basis of this decision, the courts of first and second instance reviewed the case²⁹⁵ and, recognising the binding nature of the Committee’s decisions, followed its position on the fact of discrimination of the applicant in exercising her right to work.²⁹⁶

5.4.3 Impact on and through Independent State Institutions

The Ombudsman actively supports the Committee’s recommendations. The Commissioner referred to the Committee’s cos in her 2017 annual report with a view to supporting her position concerning assistance to women who wish to abandon prostitution.²⁹⁷ The Commissioner shares the same view with the Committee on the need for the adoption of comprehensive legislation to prevent and address domestic violence against women²⁹⁸ in her recommendations in the 2017²⁹⁹ and 2018 reports³⁰⁰ addressed to the government on developing a draft of comprehensive federal law ‘On Combating Domestic Violence’. However, the Commissioner does not explicitly refer to the Committee in these recommendations. The High Commissioner regularly participates in the conferences and events devoted to the protection of women’s rights,³⁰¹ where the Ombudsman usually stresses the importance of meeting the requirements of cedaw by Russia.

5.4.4 Impact on and through Non-state Actors

It is difficult to reveal the actual level of awareness and use of the treaty and the Committee’s interpretations by the legal profession. In its 2015 cos the Committee noted with concern that there is insufficient knowledge about the Convention’s rights among the branches of government, and recommended to the state ‘to provide training to the police and law enforcement officials, as well as awareness-raising campaigns aimed at the general public’.³⁰² This view is supported by Russian scholars.³⁰³

Recently one professional training was organised for lawyers that focused on the practice of the cedaw Cttee to address violence against women.³⁰⁴ Lawyers publish articles wherein they provide analyses of the legal positions of the Committee, including on communications where they represented applicants,³⁰⁵ to help practising lawyers to strengthen their positions in courts.³⁰⁶

There are a few ngos that in their activities deal with women’s rights and present alternative reports to the cedaw Cttee: anna – Centre for the Prevention of Violence,³⁰⁷ Anti-Discrimination Centre ‘Memorial’,³⁰⁸ Women’s Union of Russia,³⁰⁹ and Consortium of women’s non-governmental associations.³¹⁰ One of the examples of the use of the treaty by ngos is the research project of the non-profit organisation the Russian Justice Initiative (rji) on the practice of female genital mutilation in the North Caucasus. The authors of the research project refer to the Convention and the legal positions of the cedaw Cttee to reinforce their views and formulate proposals on solving this problem.³¹¹ This initiative was supported by other Russian organisations, including the Moscow Helsinki Group.³¹² Furthermore, in March 2017 adc Memorial, which was supporting the communication of S Medvedeva to the cedaw Cttee, launched the #allJobs4allWomen campaign with the aim of lifting discriminatory labour bans for women. As part of the campaign, successes were achieved not only in judicial protection of women’s rights, but also in making the prohibition of professions for women the subject of public discussion in Russia and in the countries of the post-Soviet region.³¹³

Russian scholars conduct research on various aspects of implementation of cedaw in Russia. There are studies devoted to the general issues of incorporation of Convention in the Russian legislation,³¹⁴ the analysis of the implementation of the cos of the Committee in Russia,³¹⁵ to the analysis of the situation of domestic violence and the application of the Convention.³¹⁶ Some scholars focus on the analysis of the discrimination of Russian women in various spheres of life in light of the provisions of the Convention, especially in labour.³¹⁷

5.4.5 Impact of State Reporting

As was mentioned earlier, the example of the direct impact of the cos was the adoption of the National Strategy for Women for the period 2017–2022³¹⁸ in response to the recommendation ‘on ensuring effective coordination and developing a gender mainstreaming strategy’.³¹⁹ However, the Committee considered that the recommendation has been partially implemented due to its regret on the lack of information on an independent gender-responsive budget on the strategy.³²⁰ The establishment of the coordinating council within the government to oversee the strategy’s implementation was, as mentioned in its follow-up report, in response to the Committee’s recommendation on proceeding with the establishment of a high-level commission on women’s rights and providing it with a clear mandate.³²¹ The Committee considered that this recommendation had been implemented.³²² Another example of impact is the revision in 2019 of the list of restricted occupations and sectors for women, which is a joint effect of the cos and the individual communications procedure, which will be discussed below.

Some impact may be determined in the context of developing draft legislation, in particular the draft federal law ‘On state guarantees of equal rights and freedoms and equal opportunities for men and women’,³²³ and the draft federal law ‘On the prevention of domestic violence’,³²⁴ which were both drafted and discussed in the state Duma. The explanatory notes to both draft laws referred to the Convention.³²⁵ Neither of these two laws passed the discussion in the state Duma, since no consensus on the conceptual aspects of these laws had been reached among the state officials, civil society and citizens.³²⁶

5.4.6 Individual Communications and Their Impact

There have been eight individual communications lodged against Russia. In four communications, the cedaw Cttee found violations. In one communication (S Medvedeva v Russia) the Committee dealt with discrimination against the applicant who was denied employment by the company because of her sex, on the basis of an explicit legal prohibition, and the right to protection of health and to safety in working conditions.³²⁷ The Committee adopted two sets of recommendations: (i) regarding the author, it granted her appropriate reparation and adequate compensation commensurate with the seriousness of the infringement of her rights and facilitate her access to jobs for which she is qualified; (ii) in general, it recommended to the state to review and amend article 253 of the Labour Code and periodically revise and amend the list of restricted occupations and sectors in order to ensure that restrictions applying to women are strictly limited to those aimed at protecting maternity in the strict sense; and after the reduction of the list of restricted occupations, promote and facilitate the entry of women into previously restricted jobs by improving working conditions and adopting appropriate temporary special measures to encourage such recruitment.

Three other communications dealt with the cases of domestic violence against women. In two communications the Committee recommended to the state to provide adequate financial compensation to the author commensurate with the gravity of the violations of rights.³²⁸ In the other communication the Committee recommended to the state with regard to the authors to ensure the review of the judicial proceedings concerning the cases of domestic violence against both authors, grant the authors appropriate reparation and comprehensive compensation; conduct an exhaustive and impartial investigation to determine the failures in the state’s structures and practices that have caused the authors to be deprived of protection.³²⁹ In all three cases the Committee recommended to the state to adopt an extensive measures to fulfil its obligations to protect the rights of women to be free from all forms of gender-based violence, including domestic violence, through, among others, the adoption of comprehensive legislation addressing domestic violence.

The decision in the case of S Medvedeva received the widest extent of publicity, as it was published by the Supreme Court and in the media.³³⁰ In 2017 the Supreme Court received the complaint by Ms Medvedeva³³¹ about the annulment of the rulings of the first and second instance courts which did not satisfy her claim for revising the previous court decisions on the basis of the 2016 view of the cedaw Cttee in her communication. The Supreme Court found that this view should be enforced and may be regarded as a new circumstance in relation to the provisions of the Code of Civil Procedure for revising a court decision. On the basis of the Supreme Court decision, the court of first and second instance reviewed the case and found the fact of discrimination of the abovementioned citizen. However, it did not oblige the company to conclude an employment contract with the claimant, since the legislation does not provide for such an obligation for the company, and also due to the absence of the relevant vacant position in the company at that time.³³² In December 2016 the Russian Union of Seafarers (rpsm), guided by the cedaw Cttee’s decision in the case of S Medvedeva, prepared and sent to the government a petition asking for the exclusion of work performed by the members of crews of ships from the list of the banned professions.³³³ As a result of all these initiatives and also taking into account the recommendations of the Committee of Experts on the Implementation of the Conventions of the ilo,³³⁴ in August 2019 the Ministry of Labour and Social Protection revised and adopted the new version of the list of professions, which are limited to be performed by women.³³⁵ Importantly, the term ‘prohibited’ was replaced by the term ‘limited’. The new list contains 100 positions, which is 4,5 times shorter than before.

5.4.7 Brief Conclusion

The treaty has influenced the policies on the protection of women’s rights. Thus, the adoption of the National strategy for women for the period 2017–2022 was motivated by the cos of the cedaw Cttee. A measure of impact is ensured through the activities of the High Commissioner, the work of practising lawyers, the increased use in the scholar research and the activities and campaigns of the ngos, specifically in relation to addressing the problem of female genital mutilation and lifting the restrictions for women to occupy certain professions.

The strongest impact of the Committee’s cos, apart from the national strategy for women, was the establishment of the coordinating council within the government to oversee the strategy’s implementation. Another pertinent impact was the revision in 2019 of the list of restricted occupations and sectors for women, that is regarded as a joint effect of the cos and the implementation of the decision of the cedaw Cttee in the communication S Medvedeva v Russia. While among all core human rights treaties, cedaw is the treaty with the smallest number of court decisions with direct references to its text, the Committee’s decision in S Medvedeva v Russia was recognised by the Supreme Court as enforceable in Russia and regarded as a new circumstance in relation to the provisions of the Code of Civil Procedure for revising a court decision by analogy to the legal consequences of the views of the HRCttee.

Apart from these positive tendencies, there are certain issues raised by the Committee within both the reporting and communications procedure that remain the subject of continuous discussion with the state, especially with regard to the situation with domestic violence. While a certain impact may be determined in the context of developing draft legislation, in particular the law on equal rights for men and women, and the law on the prevention of domestic violence, no consensus on the conceptual aspects of these laws has been reached among the state officials, civil society and citizens. Such situation may be also explained by the understanding of the role of women and the traditional family values by the Russian society that in some aspects may be at variance with the approach of the Committee,³³⁶ which is concerned ‘at the persistence of patriarchal attitudes and stereotypes concerning the roles and responsibilities of women and men in the family and in society’.³³⁷

5.5.1 Incorporation and Reliance by Organs of State

While Russian legislation does not directly rely on the Convention, it is clear that cat was taken into account when adopting the 1993 Constitution. The commentary to article 21(2) of the Russian Constitution containing a general prohibition on torture demonstrates that this provision was inspired by international treaties to which Russia is a party, including cat, ccpr and echr.³³⁸ cat was also a source of inspiration for the drafters of the Russian Criminal Code together with the echr and the European Convention against Torture, in particular with regard to ensuring the principle of humanism in criminal legislation (article 7 of the Criminal Code).³³⁹ Russian legislation does not incorporate the definition of torture under article 4 of cat. Commentators accept a certain discrepancy in the notions of torture under Russian law and cat.³⁴⁰ Nonetheless, the Russian criminal legislation (Criminal Code and Criminal Procedure Code) contains a number of provisions ‘on the prohibition of any type of unlawful act involving physical or psychological abuse of human beings’.³⁴¹ As Russia mentioned in its periodic report, ‘in such a case, the law-enforcement agent bases himself on the definition of the concept of ‘torture’ contained in the Convention’.³⁴²

Russia has developed a large number of policies and programmes that are related to the issues covered by cat and the cat Cttee’s cos. These policies, especially the policies in the area of improving the penal system, generally do not directly refer to the treaty. Their implementation is mostly aimed at fulfilling the obligations taken within Russia’s membership in the CoE (the echr, the European Prison Rules as well as requirements of the cpt) and international treaties of Russia protecting the rights of detained and accused persons.³⁴³

One of the most pertinent institutional reforms is the establishment in January 2011 of the Investigative Committee as an independent state body in charge of investigations, separate from the Procuracy. Although this is not directly provided by cat, it is related to the treaty, since the Committee itself regarded this measure as giving effect to its recommendations.³⁴⁴

5.5.2 Reliance by Judiciary

The fifth periodic report of Russia submitted in 2011 indicated that ‘there have been no cases in practice in which the provisions of the Convention have been directly applied by a court’.³⁴⁵ The sixth periodic report of Russia submitted in 2016 demonstrated progress in that respect, showing that the Russian courts usually refer to article 3 of cat together with the provisions of ccpr and the echr in extradition cases.³⁴⁶ For example, the Russian Supreme Court considered decisions of the Russian General Prosecutor’s office to extradite a person as illegal on the basis of the risk of torture in the requesting state.³⁴⁷ Russian higher and lower courts also refer to the jurisprudence³⁴⁸ and cos³⁴⁹ of the Committee as a source of information and for strengthening argumentation in the cases involving extradition and expulsion of persons to countries such as Ukraine, Kyrgyzstan, Tajikistan and Uzbekistan. Since 2015 the Supreme Court has prepared a compilation of practice and legal positions of treaty and non-treaty human rights bodies on the issues of the protection of the right not to be tortured or be subjected to inhuman or degrading treatment or punishment,³⁵⁰ which contains positions of the Committee together with the HRCttee and the ECtHR.

5.5.3 Impact on and through Non-state Actors and Independent State Institutions

There is no concrete data on the extent of use of the treaty by the legal profession. The Committee has been pointing to the lack of practical training for state officials and expressed concern that training on the provisions of the Convention is not mandatory for all law enforcement officers, military personnel and judicial officials.³⁵¹

A number of ngos specifically deal with issues of torture in Russia.³⁵² There are also ngos with a broader scope of activities that deal with civil and political rights, including torture. An example of the initiatives of the representatives of civil society is the idea of the inclusion of a separate article on torture in the Russian Criminal Code in order to bring the Russian legislation in conformity with cat.³⁵³

Russian scholars conduct research on various aspects of implementation of cat in Russia. They usually examine the implementation of the Convention together with other international instruments, especially European, such as the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.³⁵⁴ Attention is given to the research on the complementarity of the notion of torture in the Russian criminal legislation with the Convention. Russian scholars support the idea of the inclusion of a separate article on torture in the Russian Criminal Code in accordance with cat.³⁵⁵ A number of researchers discuss the perspectives of the establishment of the national preventive mechanism in line with op-cat in their work.³⁵⁶

The Russian Ombudsman considers the conformity of the Russian legislation with the Convention. In the annual report for 2009, the Ombudsman noted that the provisions of the Federal Law No 76-fl of 10 June 2008 ‘On Public Control of Ensuring Human Rights in Places of Detention and on Assistance to Persons Located in Places of Detention’ do not meet the recommendation of cat since it excludes the possibility of checking correctional institutions without prior notification of the Russian Federal Prison Service.³⁵⁷ The Commissioner supported the view on introducing into the Russian Criminal Code a separate article on torture³⁵⁸ and criticised the decriminalisation of the crimes of domestic violence.³⁵⁹ These ideas reflect the positions of the cat Cttee, although the Commissioner does not explicitly refer to the Committee when expressing these views.

5.5.4 Impact of State Reporting

Among the examples of the impact is the establishment in 2011 of the Investigative Committee³⁶⁰ in charge of investigations, separate from the Procuracy. This measure was considered by the cat Cttee as ‘giving effect to the Committee’s previous recommendation’.³⁶¹

The Ministry of Justice prepared a draft law on ensuring prompt access of detained persons to a lawyer with a view to implement paragraph 11 of the cat Cttee’s cos on providing all detained persons with prompt access to a qualified independent lawyer.³⁶² However, the relevant state authorities did not support this law for various reasons.³⁶³ Finally, instead of adopting the law, the Ministry of Justice updated the instructions for the organisation of the access system to detention centres with the direct indication that a lawyer should be given a pass upon presentation of only a lawyer’s identification card.³⁶⁴

Russian strategies, policies and legislation, which are regarded in the cos as positive aspects, do not clearly demonstrate a direct link with the recommendations of the cat Cttee. Instead, these developments often refer to the European human rights instruments and their monitoring bodies. What may still point to the presence of a certain impact is the fact that the Committee enquires from Russia on the progress and welcomes results achieved in the implementation of the findings of the European bodies, especially the decisions of the ECtHR, particularly in the area of upgrading the conditions of detention.³⁶⁵

In 2018 the government elaborated and submitted to Parliament a draft law on amending relevant legislation which allows prisoners to file administrative law suits in Russian courts with the request for compensation in relation to the failure to provide adequate conditions of detention and imprisonment.³⁶⁶ The Russian officials and authors of the law stress that the law addresses problems that are considered not only by the ECtHR, but also the cat Cttee.³⁶⁷ The content of the law seems to have a direct relation to the Committee’s cos.³⁶⁸ Thus, the draft law may well have become a joint impact of the Committee and the ECtHR.

Among the cos that Russia has not implemented is the introduction of a separate article on torture in the Russian Criminal Code. There is no consensus on this issue in the country. This idea is supported by civil society and the High Commissioner,³⁶⁹ but the security agencies are opposing it due to a lack of necessity to amend the Code, since parts of the crime of torture are already introduced in different provisions of the Code.³⁷⁰

5.5.5 Individual Communications and their Impact

A total of ten individual communications lodged against Russia were considered by the Committee, of which seven were found to be inadmissible.³⁷¹ In three cases the cat Cttee found violations, specifically that (i) the conditions of the complainant’s detention in the temporary confinement ward amounted to cruel, inhuman or degrading treatment (Kirsanov v Russian Federation);³⁷² (ii) the extradition of the complainant to his homeland (Uzbekistan), where torture was expected, would constitute a violation of article 3 of cat (x v Russia);³⁷³ and (iii) the complainant was tortured by police officers during his detention, his confessions were obtained under duress and used in court, and that the state failed to undertake any prompt and impartial investigation regarding the acts of torture against him (Gabdulkhakov v Russia).³⁷⁴ In the first case the cat Cttee recommended that Russia ‘take steps to provide the complainant with redress, including fair and adequate compensation’.³⁷⁵ In the second case the Committee ‘urged the state party to provide redress for the complainant, including his return to the Russian Federation and adequate compensation’.³⁷⁶ In the third case the Committee recommended to the State

to provide the complainant with an effective remedy, including (a) conducting an impartial investigation into the complainant’s allegations, with a view to the prosecution, trial and punishment of anyone found to be responsible for acts of torture; (b) providing the complainant with a retrial; (c) providing the complainant with redress and the means of rehabilitation for the acts of torture committed; and (d) preventing the recurrence of any such violations in the future.³⁷⁷

In the case of Kirsanov v Russian Federation the following developments took place at the national level. In 2016 Mr Kirsanov appealed to the Constitutional Court with a claim of disputing the constitutionality of article 392 of the Civil Procedure Code, which establishes the basis for the review of court decisions (due to newly-discovered or new circumstances). The applicant referred to the Constitutional Court after the unsuccessful attempts to apply this article to revise on the basis of the Committee’s finding in the 2008 Samara District Court decision awarding him compensation for moral damages caused by his prolonged detention in humiliating conditions in the temporary confinement ward. The Constitutional Court refused to accept Mr Kirsanov’s claim since his attempts to revise the aforementioned court decision did not concern the responsibility of individuals who committed the cruel, inhuman or degrading treatment,³⁷⁸ noting that this fact was already mentioned in the Committee’s finding.³⁷⁹ The Constitutional Court stated that in such circumstances article 392 of the Civil Procedure Code does not prevent Russia from fulfilling its international obligations in accordance with cat and cannot be regarded as violating the constitutional rights of the applicant in this particular case.³⁸⁰ Thus, the Court did not find procedural obstacles for the applicant to execute the cat Cttee’s decision in future.

5.5.6 Brief Conclusion

cat was taken into account when drafting and adopting article 21(2) of the Russian Constitution containing a general prohibition of torture and article 7 of the Criminal Code ensuring the principle of humanism in the criminal legislation. The impact of the treaty is demonstrated through recent tendency (since approximately 2016) of reliance by higher and lower courts on cat and the cat Cttee’s jurisprudence and cos in the cases involving extradition and expulsion of persons.

While the High Commissioner considered the conformity of the Russian legislation with cat and submitted its first report to the cat Cttee in 2018, in the current Commissioner’s activities there is little direct reliance on the Convention and the cat Cttee, compared to other treaties.

The impact among the non-state actors is demonstrated mostly by some ngos and Russian scholars, who support the idea of the inclusion of a separate article on torture in the Russian Criminal Code in order to bring the Russian legislation in conformity with cat. A few examples of the impact of cos are the establishment in January 2011 of the Investigative Committee; the development by the Ministry of Justice of the draft law on ensuring prompt access of detained persons to a lawyer; and the 2015 amendments to the Russian Criminal Code establishing the investigators’ obligation to respect the right of detained persons to notify a relative.

While in general the Russian delegation always enters into dialogue with cat within the reporting procedure, there are certain issues that are regularly raised by the cat Cttee, on which the state holds a position different from that of the Committee and representatives of civil society, including the lack of the separate article on ‘torture’ in Russian legislation, ineffective and impartial investigation of all incidents and allegations of torture and ill-treatment.

Another aspect that influences the impact of cat in the country is the relationship between the Committee’s recommendations and the findings of the European mechanisms, especially the ECtHR, with regard to the particular developments in the state. The Committee itself recommends to Russia to follow the decisions of the ECtHR as part of the implementation of its obligations under cat. When undertaking certain measures with regard to the questions of joint Committee and ECtHR concern, including in the sphere of detention conditions improvement, the Russian authorities tend to make more references to the echr and the ECtHR decisions, rather than to the Convention and the Committee’s recommendations. On the one hand, the connection with the ECtHR may be a factor preventing establishment of a concrete impact of cat. On the other hand, such a linkage may reinforce the effect of the Committee’s recommendations in Russia.

5.6.1 Incorporation and Reliance by Organs of State

The state stresses that the protection of children is one of the core provisions of the Russian Constitution³⁸¹ and that the principles concerning the protection of children have been systematically incorporated in different branches of law governing the protection of human rights in education, health care, the court system and social protection. This set of laws together with the Constitution form comprehensive legislation in the sphere of protection of children’s rights. However, the crc Cttee has noted that it is important to take all the necessary measures to amend Russian legislation, in particular in the areas of deinstitutionalisation, adoption and non-discrimination, to better reflect the principles and provisions of the Convention. It has also urged the state party to ensure that those laws that are already in conformity with the Convention are fully and effectively implemented.³⁸² In this situation one may conclude that the provisions of the Convention have been only partially incorporated in the Russian legislation.

In 2017 several changes to the Russian legislation protecting the rights of minor children were made in accordance with the crc. These are directly relevant to additional mechanisms to counter the stress that has the potential of inducing suicidal behaviour among children. Monthly payments to low-income families due to the birth or adoption of the first or second child are federally established, and there has been an extension to the timeframe for distribution of financial support from the federal budget, which is intended for the implementation of activities of the Fund for Children in Especially Difficult Circumstances.³⁸³

The state has adopted various strategies and policies that are related to the issues covered by crc. These policies generally mention that they are adopted in accordance with the international treaties of Russia in the specific area. Some of these documents contain direct references to the Convention.³⁸⁴ The National Children’s Strategy for 2012–2017, which has a direct reference to crc in its text, is regarded as the most significant development since the Committee welcomed the adoption of this strategy in its cos.³⁸⁵

In 2009 a new mechanism, the office of the Children’s Rights Commissioner of the President of the Russian Federation (Presidential Commissioner for Children’s Rights), was established. While the crc Cttee in 2014 noted the establishment of this position at the federal and regional levels, it expressed deep concern that the position is directly linked to the office of the President and not to Parliament, about the non-transparent procedure for appointing commissioners, and reports that many of the commissioners have little experience in protecting children’s rights and do not observe the confidentiality of cases and act rather as law enforcement officials. The Committee recommended that Russia introduce a transparent and competitive process, regulated by law, for nominations and appointments to all posts of commissioners for children’s rights in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).³⁸⁶

5.6.2 Reliance by Judiciary

Court practice reveals examples of direct reference to crc with a number of cases with references to the interpretations of the crc Cttee. Reference to crc provisions concerning the combat against pornography³⁸⁷ and the principle of the best interests of the child³⁸⁸ may be found in the practice of superior and lower courts. There are also references to the Convention in cases dealing with the refusal to grant asylum in Russia.³⁸⁹

5.6.3 Impact on and through Non-state Actors and Independent State Institutions

The examples of direct reference to the Convention and the interpretations of the crc Cttee in courts may lead to the conclusion that practising lawyers use the treaty in their arguments. However, this does not reveal the actual picture of the awareness and use of the crc by the legal profession.

There are few ngos that deal with issues of children’s rights in Russia and that are actively submitting alternative reports to the Committee.³⁹⁰ These ngos may rely on the Convention in their activities, for instance, in the area of the use of psychiatry as a punishment tool in children’s institutions of Russia;³⁹¹ the violation of children’s rights belonging to the indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation;³⁹² hiv and infant feeding;³⁹³ children with disabilities;³⁹⁴ and the situation of children belonging to vulnerable groups in Russia.³⁹⁵

Russian academics give much attention to crc and its application in Russia. The majority of publications deal with the right of children of persons sentenced to imprisonment to communicate with them;³⁹⁶ international adoption;³⁹⁷ the right of parents to communicate with their children after divorce;³⁹⁸ the application of the rules on the international jurisdiction of cases arising from the legal relationship between parents and children;³⁹⁹ the concept of ‘negative impact’ on juvenile participants in criminal proceedings;⁴⁰⁰ and improvement of legislation in the field of social services for disabled children who are orphans and are brought up in specialised institutions.⁴⁰¹

The Ombudsman in its activities deals with complaints of violations of children’s rights. However, it is unclear whether the nhri uses crc and crc Cttee’s legal positions in its activities. In its 2017 annual report, the Ombudsman mentions that it is guided by the fundamental norms of the crc, the best interests of the child being a primary consideration.⁴⁰²

5.6.4 State Reporting and Its Impact

The crc Cttee has repeatedly asked Russia to provide information on the following issues: the strengthening of its efforts to establish a comprehensive and permanent mechanism within the national statistical system to collect data, disaggregated by sex, age, rural and urban area, nationality and ethnic origin; and making further efforts to ensure the implementation of the principle of respect for the views of the child. In this connection, particular emphasis should be placed on the right of every child, including children who are members of vulnerable and minority groups, to participate in the family, at school, in other institutions and bodies and in society at large; legislation, in particular in the areas of deinstitutionalisation, adoption and non-discrimination, to better reflect the principles and provisions of the Convention; the establishment of effective mechanisms aimed at facilitating the adoption process by removing unnecessary barriers, but at the same time ensuring proper screening of families where children are involved.

The salient example of the impact of cos is the ratification of op-crc-ac in 2008. The proposal to ratify the Protocol was submitted to the Russian President by the Ministry of Foreign Affairs together with the Russian Ministry of Defence and other interested ministries in order to implement the recommendation of the crc Cttee to ratify this international treaty as a priority with a view to becoming its full member, as well as taking into account the foreign policy significance and relevance of this step.⁴⁰³ Another example is the adoption in 2013 of the comprehensive action plan for the socio-economic and ethnocultural development of Roma in Russia for 2013–2014,⁴⁰⁴ which falls under the scope of the co to adopt a national plan of action that includes special measures for the promotion of access by Roma to economic, social and cultural rights.

It is difficult to reveal any concrete legal reform that was prompted directly by the recommendations of the Committee. However, a certain linkage could be demonstrated in the case of the initiative to adopt a law concerning care for orphaned children and children left without parental care, on 2 July 2013; a law aimed at preventing trafficking in children, their exploitation, child prostitution and activities related to production and dissemination of material and objects with pornographic images of minors, on 5 April 2013; the Education Act, on 29 December 2012, which includes a provision on inclusive education for children with disabilities; an Act on amendments to the Criminal Code and other legislative acts of the Russian Federation, which increase punishment for sexual crimes against minors, on 29 February 2012.

5.6.5 Brief Conclusion

A certain impact could be demonstrated through the judiciary due to the presence of examples of court cases with direct reference to crc. The state is constantly developing dialogue with the Committee within the reporting procedure on many issues. However, a direct link between the Committee’s cos and the developments in the state is not easy to establish. A few examples of a discernible linkage are demonstrated through the follow-up procedure and due to chronological sequence. Among these are the reform of the institution of the Ombudsman for the Rights of the Child; the adoption of the National Children’s Strategy for 2012–2017; and the ratification of op-crc-ac.

5.7.1 Incorporation and Reliance by Organs of State

Before signing and ratifying the Protocol, a number of laws⁴⁰⁵ were adopted as part of the preparatory legislative reform.⁴⁰⁶ A clear example is federal law 58-fz of 5 April 2013,⁴⁰⁷ which was adopted in order to provide the basis for the fulfilment by Russia of its obligations under op-crc-sc and the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention).⁴⁰⁸ The ratification of these treaties was followed by further legislative reforms, including the introduction of definitions of the ‘sale of children’, the ‘exploitation of children’ and ‘victims of the sale and exploitation of children’⁴⁰⁹ and the introduction of new articles in the Code of Administrative Offences.⁴¹⁰

While in its cos the crc Cttee appreciated the progress achieved in the adoption of national plans and programmes that facilitate the implementation of op-crc-sc, including the adoption of the National Strategy on Action for Children 2012–2017,⁴¹¹ these policy documents do not directly rely on the Protocol. They generally mention that they are adopted in accordance with the international norms and treaties of Russia in the specific area.

5.7.2 Reliance by Judiciary

In two of its decisions in 2019 the Constitutional Court applied the definition of ‘child pornography’ in line with op-crc-sc.⁴¹² The Protocol was also invoked by lower courts in the cases concerning child pornography.⁴¹³

5.7.3 Impact on and through Independent State Institutions

In its 2018 cos the Committee noted that op-crc-sc is disseminated through a legal education system established at the federal and local levels and also through awareness-raising activities by children’s rights commissioners. However, the crc Cttee noted the limited information available on training on the provisions of the Protocol for professionals working with and for children, except for educational staff.⁴¹⁴ Some official websites of the professional law bureaus mention the Protocol in their publications authored by lawyers.⁴¹⁵ Nonetheless, it is difficult to provide the assessment of the level of knowledge and use of the treaty by the legal profession in the state. Among the Russian ngos that deal with the issues covered by the Protocol, one should mention the Russian Alliance Combating Commercial Sexual Exploitation of Children.⁴¹⁶ In 2018 this Alliance together with ecpat provided an alternative report to the Committee in relation to the initial report of Russia.⁴¹⁷ The report reveals that the organisation, jointly with ecpat International, conducted various studies, undertook a number of awareness-raising activities on the risks of internet use, launched a youth volunteer movement and provided training for the staff of some hotels. It seems that in these activities the ngo is guided by the Protocol together with other treaties to which Russia is a party, namely, the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Russian scholars do not pay much attention to the Protocol in their research. A few publications deal with certain issues of implementation of the Protocol in Russia,⁴¹⁸ and provide the analysis of the notions of ‘sexual exploitation’⁴¹⁹ and ‘illegal adoption’.⁴²⁰

5.7.4 Impact of State Reporting

In its first and only cos addressed to Russia in 2018 the crc Cttee paid particular attention to the following problems: the lack of a comprehensive strategy covering all areas under op-crc-sc, including all forms of the sale of children; no single national body coordinating activities to implement the Protocol; a lack of awareness of the Optional Protocol by children and their families and non-incorporation of its provisions into school curricula; insufficient efforts to identify children in need of protection among children in vulnerable and marginalised situations; cases of child marriage, especially in the North Caucasus; sex tourism to the state by foreigners and sex tourism of Russian citizens travelling abroad; a significant increase in the number of websites with child pornography since 2009; a lack of provisions on criminal liability of legal persons under the Russian legislation for offences under the Protocol; treatment by law enforcement agencies of victims of offences under the Protocol, including children involved in prostitution, as offenders rather than victims of crimes; inadequate recovery and reintegration services for child victims of offences.

On 3 July 2018 the state Duma of the Federal Assembly of the Russian Federation adopted in first reading the draft federal law No 388776–7 ‘On Amending the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation in terms of improving mechanisms to combat crimes against sexual inviolability of minors’, aimed at strengthening measures to combat crimes against the sexual integrity of minors.⁴²¹ This draft law provides for the possibility of the statute of limitations to start from the moment when the victim reaches 18 years (majority) in cases where the perpetrator of a crime against sexual inviolability of this minor (victim), who at the moment of the crime has not reached the age of twelve, has not been identified or there was no notification of such a crime. This provision seems to follow the recommendation of the Committee to remove the statute of limitations for offences under the Protocol.⁴²²

In its cos the Committee recommended to the state party to incorporate explicitly into its criminal legislation the liability of legal persons for committing offences under the Protocol. Shortly after the adoption of the cos the draft federal law on the introduction of the institute of criminal liability of legal entities,⁴²³ which had been under consideration of the state Duma since March 2015, was declined by the state Duma due to the official review of the government noting that its adoption implied radical changes in the concept of the criminal law and the criminal law doctrine regarding liability of legal entities and thus pointing to the need for the additional in-depth discussion and theoretical justification of this law.⁴²⁴

5.7.5 Brief Conclusion

The relatively short period of time after the entry into force of the Protocol allows one to consider that this treaty does not demonstrate a strong impact on the human rights developments in the country. The few examples of its impact are the legislative amendments introduced before and after the ratification, a number of cases of reliance on the Protocol and the Committee’s positions by domestic courts, use by the ngos and researchers. Since the state had only one dialogue with the crc Cttee with the cos adopted in 2018, it is difficult to make a concrete assessment on their impact. Another aspect that should be taken into account is the link between op-crc-sc and the Lanzarote Convention, which ratification coincided with the Protocol’s ratification. The fulfillment by Russia of its obligations under this instrument together with the obligations under the Protocol were mentioned as a motivating factor to introduce the relative legislative changes in the state.

5.8.1 Incorporation into Domestic Law and Policy

Russia in its initial report mentioned that Russian law contains no provisions that hamper the implementation of the Protocol. There is no need to amend Russian law in order to implement the Protocol.’⁴²⁵ When ratifying the Protocol in the Parliamentary Debate, it was also concluded that (a) the provisions of the Protocol do not contradict Russian legislation;⁴²⁶ and (b) amendments to the Russian legislation are not required in connection with the ratification of the Protocol.⁴²⁷

5.8.2 Reliance by Judiciary

The Protocol and the relevant positions of the crc Cttee have been featured several times in reviews of judicial practice compiled by the Supreme Court,⁴²⁸ but the treaty and the treaty body interpretations have not been relied upon by domestic courts.

5.8.3 Impact on and through Independent State Institutions

No concrete information on the use of op-crc-ac by the High Commissioner is available to the authors, except for the fact that the High Commissioner took part in the preparation of the periodic report of Russia under the Protocol.⁴²⁹ The state’s report revealed that in 2010 a study of the provisions of the Protocol was incorporated into the official military training system for staff of the Ministry of Internal Affairs. Further, more than 40 higher education institutions providing vocational training have introduced ‘life safety’ as a new specialism as well as the qualification of life safety teacher.⁴³⁰ The training system for the military personnel of the Ministry of Defence of the Russian Federation also provides for the study of the provisions of the Optional Protocol.⁴³¹ No concrete information on the use of op-crc-ac by ngos is available to the authors. Russian scholars do not pay much attention to the Protocol in their research. A few publications mention the treaty in the context of analysing the current issues of international humanitarian law⁴³² and in the context of considering issues related to the protection of children in armed conflicts.⁴³³

5.8.4 Impact of State Reporting

In its first and only cos addressed to Russia in 2014 the crc Cttee paid particular attention to the following problems: the admission to professional military educational institutions and acquiring the status of members of the military performing compulsory military service for the children who have reached the age of 16; military training involving the use of firearms and combat training for children under the age of 18 in both general and military schools; military discipline and punishment of children under the age of 18 who are admitted to cadet schools and higher military institutes; the lack of explicit prohibition in the Criminal Code on the recruitment of any children under the age of 18 by the armed forces or by non-state armed groups and the use, involvement and participation of children in hostilities; the lack of mechanisms in place to identify at an early stage refugee, asylum-seeking and migrant children who may have been involved in armed conflicts in other countries, and the lack of information on the procedures for their protection, recovery and reintegration. While the Ministry of Defence has stressed that the results of the consideration of Russia’s report by the Committee will be taken into account in its future work, no concrete information revealing the impact of the cos was found by the authors.⁴³⁴

5.8.5 Brief Conclusion

The relatively short period of time after the entry into force of the Protocol allows one to consider that this treaty hardly demonstrates any impact on the human rights developments in the country, except for the inclusion of the Protocol in the study programmes of the higher education institutions and the official training system for the staff of the Ministry of Internal Affairs and the Ministry of Defence.

5.9.1 Incorporation and Reliance by Organs of State

In the period 2011–2013, 12 legislative acts were passed in order to give effect to different provisions of the Convention⁴³⁵ in preparation for the instrument’s ratification and as part of subsequent efforts to implement it. However, the application of these standards was not enough ‘to address the existing systemic failures in the legal regulation of issues concerning the creation of a barrier-free environment and the elimination of disability-based discrimination by means of individual laws’.⁴³⁶ Thus, on 1 December 2014 the Federal Law No 419-fl⁴³⁷ was adopted to introduce interconnected amendments to 25 legislative acts with a view to incorporating the Convention. The law provided the basis for the gradual implementation of crpd in various laws in the field of the social protection of persons with disabilities, particularly in areas such as transport, communications, the electoral process, employment, housing policy, health care, law enforcement, emergency response and culture.⁴³⁸ In total, significant changes to bring the Russian legislation in line with the crpd have been introduced into the 1995 Social Protection for Persons with Disabilities Act, the Civil and Criminal Procedure Codes, as well as 40 other federal and 750 regional laws.⁴³⁹

National implementation of the Convention’s provisions in establishing a barrier-free environment is being carried out at all levels through the implementation of the Accessible Environment Programme for 2011–2025, which was developed in accordance with article 27 of the Convention even before ratification.⁴⁴⁰ The programme together with its three sub-programmes is one of the major initiatives for phased state planning for the long-term perspective to implement the Convention.⁴⁴¹ The programme provides for the adoption of the comprehensive measures with a view to establishing a barrier-free environment, to improving the system of examination and rehabilitation of persons with disabilities, to developing their education, employment, cultural services, as well as to engaging in sports, tourism, social life, to ensuring individual mobility and to improve information and communication conditions. In addition, in line with the Federal Law No 419-fl the government has approved the procedures for elaboration by the state authorities of sectoral, regional and municipal plans (‘road maps’)⁴⁴² in the areas of established activity to gradually increase the values of accessibility indicators for facilities and services for persons with disabilities.⁴⁴³

The Ministry of Labour and Social Protection acts as the coordinating body within the government for matters related to the categorisation of disability and social protection for persons with disabilities.⁴⁴⁴ The Ministry established the Department on the Persons with Disabilities as a new department specialising in disability issues,⁴⁴⁵ which performs tasks related to the implementation of the Convention and cooperation with the crpd Cttee, specifically monitoring the activities of federal executive bodies and state bodies of the constituent entities of the Russian Federation to implement the Convention, as well as preparing reports to the crpd Cttee.⁴⁴⁶

The Accessible Environment Programme determines the size of the total budget allocation of the federal funds and of state extra-budgetary funds for its realisation with clarification for the budgeting in each year. The programme also determines separately the volume of funding for each of its three sub-programmes with clarification for the budgeting in each year. Additionally, state support is provided to all-Russian public organisations of persons with disabilities.⁴⁴⁷ These organisations have a wide network of territorial and local branches that provide individual assistance through subsidies to persons with disabilities.

5.9.2 Reliance by Judiciary

Despite the relatively recent ratification, Russian courts tend to refer to the crpd more actively than to other treaties that were acceded to earlier. The higher courts in their practice apply the definition of discrimination on the basis of disability⁴⁴⁸ reflected in crpd. They also refer to crpd provisions on the rights of children with disabilities.⁴⁴⁹ The Supreme Court drew attention to the provision of the Convention in respect of ensuring the right to work of persons with disabilities,⁴⁵⁰ their effective access to justice.⁴⁵¹ The Constitutional Court stressed the obligations of the state to protect the right of persons with disabilities to an adequate standard of living and social protection.⁴⁵² The Russian lower courts refer to the provisions of crpd on the right to social protection,⁴⁵³ and the right to the highest attainable standard of health.⁴⁵⁴ The Supreme Court in its ‘Overview of judicial practice’ summarises the crpd Cttee decisions⁴⁵⁵ and encourages the Russian courts to use the positions of the Committee in their practice. This fact was welcomed by the Committee in its cos.⁴⁵⁶

5.9.3 Impact on and through Independent State Institutions

Since ratification of the Convention, the nhri has constantly referred to the provisions of this instrument. The Commissioner in the 2012 annual report welcomed the ratification of the Convention and analysed the measures undertaken to implement it, including the Accessible Environment Programme.⁴⁵⁷ In the 2014 and 2015 reports, the Ombudsman emphasised, among other things, the need to draw attention to the observance of the rights of persons with disabilities in places of detention in line with the provisions of the Convention.⁴⁵⁸ In the 2017 report the Commissioner provided assessment of the wide scope of measures taken to ensure the rights of persons with disabilities in line with the Convention and noted the problems in this area, including the deficiency of the new standards of disability approval procedure that was developed in 2015, resulting in a more difficult procedure for re-assessing the existing disability.⁴⁵⁹ In the 2018 report the Ombudsman mentioned her participation in the 19th session of the Committee, where her first shadow report to the report of the Russian Federation was presented.⁴⁶⁰

5.9.4 Impact on and through Non-state Actors

In accordance with Federal Law No 419-fl legal acts of 12 federal ministries define the procedures and programmes for training specialists and staff working with persons with disabilities on providing assistance and services to persons with disabilities in compliance with accessibility requirements in line with the provisions of the Convention.⁴⁶¹ The federal ministries have set up special educational institutions and optional workshops to provide specialised training for those working in sectors involved in the implementation of the Convention.⁴⁶² The framework for the implementation of the Accessible Environment Programme provides for the organisation of professional training for managers and specialists responsible for providing relevant services.⁴⁶³ The professional training and seminars organised for the judges and court staff members include questions related to the Convention and the Committee’s practice, including the consideration of individual communications.⁴⁶⁴

However, as some representatives of civil society mention, the country lacks experienced lawyers familiar with the issue of protecting the rights of persons with disabilities and willing to work at the local level. They point to the fact that no court cases have yet been registered under the crpd’s article on non-discrimination on the basis of disability.⁴⁶⁵ There are a few ngos dealing with the protection of the rights of persons with disabilities, that post information on the crpd and the work of the Committee on their websites,⁴⁶⁶ and provide their alternative reports to the Committee. Examples of the initiatives of using the crpd include the initiatives of the All-Russian Society of the Deaf to provide bank branches with the ability to ensure Russian sign language for hearing-impaired clients⁴⁶⁷ and the project of translating the crpd into Russian sign language.⁴⁶⁸ Since the treaty’s ratification the Russian scientific community has been conducting research and publishing a wide range of works on issues related to the implementation of the crpd provisions in Russia,⁴⁶⁹ including on the right to education,⁴⁷⁰ the right to work⁴⁷¹ and the rights of children with disabilities.⁴⁷² For a relatively short period of time the crpd has received more attention by the Russian researchers than other human rights treaties that had been ratified much earlier.

5.9.5 Impact of State Reporting

The Committee’s cos raised many issues that were also pointed out in the alternative reports of ngos and the Ombudsman.⁴⁷³ Among these are the necessity to revise the term ‘disabled person’ that is officially used in Russia, as it does not reflect the human rights model; the need to amend the relevant articles of the Code of Administrative Offences to increase the amount of fines provided for the violation of the rights of persons with disabilities; the necessity to promote the rights of children and adults with disabilities living in boarding schools and other closed institutions to independent living and involvement in the local community; ensuring access of the deaf to the emergency call system by a single number 112 using text messages and other technologies; the lack of a sufficient number of sign language interpreters and documents in accessible formats during all judicial and administrative proceedings; the unlawful or arbitrary deprivation or restriction of freedom of persons with psychosocial disorders, and their placement in psychiatric hospitals or other institutions; cases of the forced sterilisation of persons with disabilities; the practice of segregated education, and the lack of transparent financial resources allocated and mechanisms established to ensure equal conditions and support for persons with all types of impairment; and the lack of full and effective participation of persons with disabilities in the monitoring process through their representative organisations, including by providing the necessary funding.⁴⁷⁴

After receiving recommendations of the Committee, on 28 December 2018 the government endorsed the Action Plan for the implementation of the cos of the crpd Cttee,⁴⁷⁵ which includes 38 activities aimed at implementing concrete recommendations with each activity having its deadlines, the responsible authorities and public organisations of disabled people, the outcome document to be adopted. On the basis of this Action Plan the state authorities of the constituent entities of Russia started developing regional plans for the realisation of the cos in accordance with the relevant federal government orders.

Since then a number of legislative initiatives have been launched in the state. The higher officials of the Ministry of Labour and Social Protection mention the amendments in the regulations of the work of the employment services, who are now responsible for taking proactive measures with a view to providing accompanied employment assistance for persons with disabilities and organising the interaction of these persons with the employers.⁴⁷⁶ Furthermore, according to the Ministry of Labour and Social Protection a Bill is being prepared on improving the employment of persons with disabilities using the updated quota system for jobs.⁴⁷⁷ The Ministry is also considering the possibility of increasing the amount of fines for violating the requirements of accessibility of facilities, services and information for people with disabilities.⁴⁷⁸

In parallel with that the government is amending the rules for recognising a person as disabled with a view to simplifying the procedure through, inter alia, approving a list of diseases, which form the basis for establishing disability permanently upon first appeal, and for children under 18 years,⁴⁷⁹ extending the criteria for providing status of ‘disabled child’,⁴⁸⁰ and reducing to three days the term for establishing disability for a patient after a limb amputation surgery.⁴⁸¹

5.9.6 Brief Conclusion

As a recently ratified treaty, in force for only a relatively short period of time, crpd has made a significant impact on the human right situation in the state. Far-reaching changes have been introduced into more than 40 federal and about 750 regional laws in order to bring Russian legislation in line with the Convention. The Accessible Environment Programme for 2011–2025, developed in line with article 27 of the Convention even before its ratification, together with sectoral, regional and municipal plans (‘road maps’) in various fields of activities, provide a framework for state planning for the long-term perspective to implement the Convention. The Ministry of Labour and Social Protection as a body responsible for cooperation with the crpd Cttee established a new structure (Department on the Persons with Disabilities) that monitors the activities of state executive bodies to implement the crpd and is responsible for preparing reports for the Committee. Despite the relatively recent ratification, Russian higher and lower courts tend to refer to crpd more readily than to other treaties that were joined earlier. A discernible impact is also demonstrated through the activities of the High Commissioner and ngos, as well as increased attention to the Convention in the research of local scholars.

Since the state had only one dialogue with the Committee with the cos adopted in 2018, it is difficult to make a concrete assessment of their impact. However, unlike in the case of other treaties, the government has established a procedure for the preparation of the report to the crpd Cttee, which was enshrined in the legal act as well as adopted an action plan of activities on the implementation of the cos. At this point the state has taken certain measures in accordance with this plan, which include the introduction of accompanied employment assistance for persons with disabilities, updating the quota system for jobs and simplifying the disability approval procedure. The state provided the legal basis for more active participation of ngos in the process of preparation of reports and implementation of the cos together with the state authorities, distinguishing the impact of crpd from other treaties.

Due to the short time of realisation of the treaty it is difficult to make an assessment of factors inhibiting its impact. However, a possible inhibiting factor could be the state of transition in the country from the medical approach to a human rights-based approach to the issue of disability. As was mentioned in the cos, Russia continues to rely on medical care and rehabilitation, while not giving enough attention to mainstream the access of persons with disabilities to services within existing systems and their inclusion in the community across all regions. Some elements of the social/human rights model that were already introduced are not always understood as effective in the society and by the rights holders. The new standards of disability approval procedure, including its technical deficiencies, make it more difficult for some individuals to reconfirm their disability status.⁴⁸² This new methodology needs to be tested in practice and assessed by experts. Therefore, time is required to integrate the human rights model in the Russian society in a most effective way.

Another factor is that crpd in its cos was encouraging Russia to follow the recommendations in the cos of the cescr Cttee⁴⁸³ with regard to ensuring access to quality medical and rehabilitation services in the context of applying a human rights-based approach to drug users.⁴⁸⁴ Such cross-referencing may be a factor enhancing the impact of the recommendations of both Committees in that area. On the other hand, it may be difficult in the future to distinguish between the impact of each of the Committees in this sphere.

Notwithstanding the efforts taken, some experts still mention that another problematic aspect in implementing the Convention deals with the lack of the awareness in society about the Convention and the possibilities it provides.⁴⁸⁵