Status of the Russian Human Rights Commissioner in the Russian State Power System and Practice of Human Rights Protection

LIU qiucen

Abstract:In the 1990s,Russia set up its system of human rights commissioners Although it does not have a long history,the system has been basically established,and it has played an important role in promoting the protection of human rights and social development in Russia,as well as responding to unfriendly comments from the international community At the same time,Russia’s system of human rights commissioners remains insufficient in compulsory execution,the division of functions and powers,sources of funding,legal status,and operational efficiency These problems originate from deficient organizational design and external factors,including historical conditions,domestic politics,and international politics In the near future,Russia should strive to improve and develop its system of human rights commissioners under the cautious consideration of both internal and external factors

Keywords:Russia human rights commissioners protection of human rights

Human rights protection is a significant result of the development of modern society and political civilization,and it serves as an important criterion for judging a society’s political civilization.Human rights protection by a country’s legislation and judicature is considered as a demonstration of how public power safeguards human rights.Leveraging state power to protect human rights in a systematic manner can arguably be regarded as the most effective measure to protect human rights.

In Russia,a federal state with the largest territory in the world and complex ethnic mix (176 ethnic groups,ethnic Russians account for 82% of the population,with minority ethnic groups concentrated in border areas),human rights development is one of the most urgent and highly politicized issues nowadays.Especially after the Crimea incident,as Russia’s relationship with European Union and with the United States grows more complex,the human rights situation in Russia has become a focus of European Court of Human Rights and it is most frequently picked out and criticized by foreign countries when Russia deals with foreign affairs.Nowadays,the Constitutional Court of the Russian Federation,procurator offices at all levels (affiliated to Russia’s prosecutorial system) and Russian Human Rights Commissioner Office make up Russia’s public power-based three-level human rights protection mechanism,which is the most authoritative official mechanism in protecting human rights in Russia.As a basic institution for Russia to protect the rights and freedom of its citizens,Russian Human Rights Commissioner (RHRC) plays a vital role in safeguarding the human rights of the country’s citizens.Moreover,it also takes a special position in Russian power authority system.In this way,its responsiveness and flexibility serve as the strong backbone for primary human rights protection in Russia.1.The human rights commissioner system was not originally created in Russia,but was widely established in Europe about 200 years ago.The first office of the human rights ombudsman in the world appeared in Sweden in 1809.In the following decades,this institution has improved and strengthened its own system and operational mechanism,especially now.More than 100 countries have set up the post of human rights commissioner (some called human rights ombudsman),whose main scope of supervision generally includes protecting women’s and children’s rights,rights to education,and political and personal rights.

I.History of the Russia Human Rights Commissioner

On November 22,1991,the Supreme Council of Russia (then a republic of the Soviet Union) approved theDeclaration of the Rights and Freedom of Man and of Citizen,in which Article 40 stipulates the establishment of a nationwide human rights commissioner organization.The commissioner would be appointed by the Supreme Council,with a tenure of five years.He or she would report directly to the Supreme Council and enjoy the same immunity as people’s delegates of the Soviet Union.Before long,the Soviet Union collapsed,and the organization failed to be established.

After the collapse of the Soviet Union,theConstitution of the Russian Federationin 1993 confirmed once again the establishment of the human rights commissioner organization,in which the first Paragraph of Article 103 in Chapter 5 stipulates that the human rights commissioner reports directly to the State Duma.However,the development of this human rights organization suffered great setbacks in the 1990s.On January 17,the Russian State Duma appointed C.A.Kovalev as Russia’s first human rights commissioner as well as the leader of Russian Human Rights Commission.The Commission has the right to investigate complaints involving the violation of the rights of investigative subjects.Before his appointment,there was no federal constitutional law stipulating the responsibility of the human commissioner.Therefore,the rights and obligations were temporarily standardized by the Presidential Decree of the Russian Federation issued on August 4,1994,which demands that officials at all regional levels provide all necessary and related information for the human rights commissioner during an investigation.It also stipulates that the commissioner exercises the his/her power according to the Decree before a relevant constitutional law is approved.On March 10,1995,the State Duma withdrew the appointment of Kovalev and didn’t appoint the next director of the human rights commissioner organization.On February 26,1997,the constitutional law of Russian Federation —Human Rights Commissioner Law of Russian Federation2.Human Rights Commissioner Law of Russian Federation (federal constitutional law no.N1-фK3),which entered into force on 26 February 1997,was adopted by vote in the State Duma of the Russian Federation on 25 December 1996 and approved by the assembly of the Russian Federation on 12 February 1997.Ф едеральный конституционный закон от 26 февраля 1997 г.N 1-Фк3“06 Уполномоченном по правамчеловека в Российской Федерации”,Принят Государственной Думой 25 декабря 1996 года Одобрен СоветомФедерации 12 февраля 1997 года.(hereinafter referred to asRussian Human Rights Commissioner Law) was ratified by the Federal Council.On May 20,1998,a new human rights commissioner O.O.Mironov was appointed.According to the Russian Human Rights Commissioner Law,the human rights commissioner of the Russian Federation is designated and appointed by the Russian Federation Duma and exercises power in line with federal constitutional law.The commissioner is independent of any government agencies and officials when exercising power.The incumbent supreme leader of Russian Human Rights Commissioner is T.H.Moskalkova,doctor of law and philosophy,who took office in 2016 and used to work as a lawyer of education law,secretary of the Ministry of Internal Affairs and State Duma deputy.

Although it has a short history,Russia’s human rights commissioner system plays a crucial role in promoting the country’s human rights protection and legal and social development by putting forward proposals for legislation and other means.It is regarded as an“important mechanism for protecting human rights and strengthening the building of the rule of law”,3.A.Ю.Sungulov,Regional Human Rights Commissioners:Russia’s First Move — Development of the Russian Regional Human Rights Commissioner system (Beijing:Political Press,1999),75.С унгуровА.Ю.Региональныиуполномоченныипоправамчеловека-первыешагивРоссии//Развитиеинст итутаУполномоченногопоправамчеловекавроссиискихрегионах.Т.2.Региональныиомбудсмен/Подред.А.Ю.Сунгурова.Приложениекжурналу“СевернаяПальмира”.CП6.,1999.C.75.and its importance has been widely recognized by the international society and the European Community in particular.As A.IO.Sungulov4.A.Ю.Sungulov,Regional Human Rights Commissioners:Russia’s First Move — Development of the Russian Regional Human Rights Commissioner system, (Beijing:Political Press,1999),198.С унгуровА.Ю.Региональныиуполномоченныипоправамчеловека-первыешагивРоссии//Развитиеинст итутаУполномоченногопоправамчеловекавроссиискихрегионах.Т.2.Региональныиомбудсмен/Полред.А.Ю.Сунгурова.Приложениекжурналу“CевернаяПальмира”.СП6.,1999.C.198.has said,“The violation of human rights often occurs when people don’t realize at all their rights have been infringed.”Therefore,“ordinary people need to access professional help and consultation from the state.The human rights commissioner must be independent and trustworthy,be decisive and professionalized to fight for citizen rights.”

B.П.Lukin5.B.П.Lukin,“Role and Significance of the Ombudsman System in Human Rights Protection”,History of the state and the Law 22 (2009):2-5.Л укинВ.П.Рольизначениеинститутаомбудсменавделезащитыправчеловека (напримереРоссиискои Федерации)//Историягосударстваиправа.2009.N 22.C.2-5.argued that the Russia human rights commissioner served as a unique bridge between state power and society and it resolved the conflicts between public interests and private interests by repeatedly monitoring the execution of human rights protection system,supervising the mistakes made by governments and rectifying the administrative procedure that failed to conform to the law.Besides,it would provide support for other power supervision organs when they fulfilled their duties.

II.Institutional System of Russian Human Rights Commissioner

As Russia’s legal system is not complete and suffers from various social problems caused by social transition,Russian human rights commissioner system is just at an exploration stage.But on the whole,this system has been basically established.

A.Legal duty of Russian human rights commissioner

The duty of Russian human rights commissioner is closely connected with the state’s protection of human rights and freedom.Article 15 inRussian Human Rights Commissioner Lawstipulates,“Citizens of Russian Federation,foreign citizens staying in Russian Federation and stateless people all have the right to lodge a complaint to the Russian human rights commissioner.”

The Russian human rights commissioner system is an important mechanism for upholding citizens’ rights and freedom.The oath for the commissioner upon inauguration is“to defend human rights and citizen freedom,faithfully fulfill my obligations according to theConstitution of Russian Federation,and to abide by Russian Federation laws,justice and conscience.”6.Original Russian Text:Клянусьзащищатьправаисвободычеловекаигражданина,добросовестноисполнять своиобязанности,руководствуясьКонституциейРоссийскойФедерации,законодательствомРоссийскойФ едерации,справедливостьюиголосомсовести.The oath is set according to the Constitution.In the Constitution of the Russian Federation,in which human rights and citizen freedom are two parallel concepts that are always mentioned together.In the logic behind the theories about state and law,human rights and citizen freedom both belong to the fundamental rights of citizens and these two are integrated and can’t be treated separately.Both the preamble of theConstitution of Russian Federationand its Article 45 say protecting human rights and citizen freedom is one of the fundamental functions of the state.The Russian human rights commissioner is required to take independent and objective investigation approaches and legal positions for the case under investigation.This in turn endows the commissioner independent status when exercising power.

Article 6 inRussian Human Rights Commissioner Lawstipulates the qualification requirements for the human rights commissioner:1.Russian Federation nationality;2.at least 35 years old;3.with adequate knowledge and experience in protecting human rights.

TheRussian Human Rights Commissioner Lawstipulates that the main objective of the human rights commissioner’s work is to protect the human rights and freedom of the citizens of Russian Federation.To achieve this objective,the commissioner needs to fulfill the following major tasks:

1.restore citizens’ infringed rights and freedom,and rectify the inappropriate acts by government agencies and local authorities that impinge on citizens’ rights and freedom;

2.to solve appeals by conciliation;

3.to improve the laws on protecting human rights and citizen freedom by legislation,and make them in line with the principle of widely recognized international laws.

The Constitution of the Russian Federation sets a series of legislative and administrative functions for the commissioner,including monitoring the infringement of human rights and citizen freedom by state organs,local governments and administrative officials at all level,providing legal consultation for the abovementioned institutions to ensure the legality of their actions,and coordinating the joint efforts by various organizations to protect the human rights and freedom of citizens in Russian Federation.

TheRussian Human Rights Commissioner Lawprovides a two-level appeal system:a human rights commissioner will be assigned to be in charge of an appeal within 10 days after it is filed by the citizen.The commissioner will make substantive examination on the appeal to decide whether it complies with the requirements of relevant laws and regulations and whether to accept the appeal.Once it is accepted,the assigned commissioner will be in charge of the investigation.But in practice,the majority of the accepted appeals can hardly pass the commissioner’s investigation.According to the report on the official website of Russian human rights commissioner,42,549 appeals were filed in 2016,only 2,858 of which were handled by the commissioner,and those not approved were dealt with by the administrative personnel in the human rights commissioner system.This is express handling of lower-level appeals.

However,the Russian human rights commissioner has no judicial powers.Based on the results of the appeal,the human rights commissioner has the right:

1.to bring rights infringement proceedings before the courts in the name of an individual or a representative of the victim in order to protect human rights and civil freedom that have been violated by decisions or acts of government bodies,local autonomous bodies or state officials at all levels;

2.to initiate administrative disciplinary review recommendations,administrative proceedings or criminal proceedings against accountable officials of the competent state departments for violations of human rights and civil freedom;

3.to apply to the courts or procurator offices for review of its decision,order or judgment;

4.in cases of serious violations of human rights and civil freedom,to make representations to the officials responsible for oversight and appeal to the Russian Constitutional Court.

In case of a flagrant or mass violation of human rights and civil freedom within Russia,the Russian human rights commissioner has the right to report to the State Duma at its next session and to make recommendations to the State Duma on the establishment of a special commission to investigate the incident and to hold hearings.

B.Organizational system of the Russian human rights commissioner

According to the public website of the government of the Russian Federation7.All specific data in this article are collected from the official website of the Human Rights Commissioners of the Russian Federation:htp://ombudsmanrf.org.,the total headcount in the Russian human rights commissioner system in 2019 was about 200,with general higher education,of which 65% had received education on law.The basic structure of the system is as follows:

1.The Human Rights Protection Department for Criminal Proceedings,with subordinates of human rights protection agencies for coercive measures,for criminal investigations and for victims respectively;

2.The Civil Human Rights Protection Department,with subordinates of the civil human rights protection department,the labor and economic rights protection department,the residential right protection department and the environmental rights and natural resources protection department;

3.The Social Rights Protection Department,with subordinates of the women’s,children’s and family rights protection department,the army and law enforcement department,the service personnel protection department,the immigration and stateless persons protection department,and the social medical personnel protection department;

4.The Political Rights Protection Department,with subordinates of the political rights and civil freedom protection department,the communication department with state organs and social organizations,and the administrative review and strategic response department;

5.Team of legal experts;

6.Information and International Cooperation Department;

7.Finance and Economy department;

8.Organization Department.

The above-mentioned institutions also embody the basic form of the classification of the theory and practice of human rights protection by the modern Russian government,that is,human rights protection is divided into four parts:human rights in criminal cases,civil personal rights,social rights and political rights.

III.Practical Role and Problems of the Russian Human Rights Commissioner System

The Russian human rights commissioner system is one of the youngest institutions in the Russian Federation since its establishment in 1991.It has provided supervision and assistance for the development of the entire political and legal system.

In view of Russia’s relatively“young”democratic system,vast territory and complex social conditions,Russian human rights commissioner system is not exactly the same as the long-standing human rights protection system in many European countries.

In some European countries where this system was established earlier,the main function of the human rights commissioner is usually to verify the integrity and correctness of administrative procedures and the applicable law,and to review the legality and compliance of the jurisdiction of state organs over specific individuals.This function is based on the fact that the laws and administrative regulations in force in the country on which the presumption is based can fully safeguard human rights and civil freedom and that the judiciary is always independent and professional.In emerging democracies such as Russia,legislation on human rights and freedom is being established and developed,and the legislative process is not always flawless or consistent with the actions of the judiciary.Therefore,the functions of the human rights commissioner need to be broader and more specific than those in other European countries (e.g.,the Swedish model).In addition to the functions and powers stipulated in theRussian Human Rights Commissioner Law,it is generally believed that the Russian human rights commissioner can analyze the current legislative protection mechanism of human rights and civil freedom,make up for the defects,and put forward legislative suggestions to improve this mechanism,and can make suggestions on the legal education content of human rights protection and jointly carry out relevant personnel training and education with other educational institutions.8.Datasource:http://ombudsmanrf.org.At the same time,the Russian human rights commissioner system,as the most important supervisory organization for the protection of the rights and interests of women and children in the Russian Federation,has set up posts like the commissioner for children’s rights in a number of Russian Federation entities.In addition,international exchanges and international communication are also important functions of the Russian human rights commissioner.Every year,the supreme leaders of the Russian human rights commissioner system and the Federation entities are required to issue relevant public reports to summarize the human rights cases in their jurisdiction in the past year,and issue work plans for the next year.These materials have long been paid attention to and quoted by the mainstream media in the world,and have become one of the bases for the international community to analyze and evaluate the human rights situation in Russia.

A.Practical role of the Russian human rights commissioner

1.Summary of the 2019 Annual Report of the Human Rights Commissioners of the Nenets Autonomous Area9.http://ombudsmanrf.org/news/v_rosi/view/larisa_sviridova_predstavila_ezhegodnyj_doklad_o_dejatelnosti_za_2019_god.

Л Svelidova,Human Rights Commissioner of the Nenets Autonomous Area10.Ненецкийавтономныйокрут,located in northwestern Russia,the population of ethnic minorities accounts for about 34% of the total,and both Nenets and Russian are official languages in this region.,delivered the 2019 human rights report of this area at the local parliament,proposing that in order to solve a series of social problems in the area and the entire Arctic Circle,reform measures should be implemented,including abolishing single housing mortgage loans,adjusting the minimum wage,introducing the concept of administrative negligence crime,and filing state compensation for citizens who have been mistakenly tried in criminal cases.

Svelidova also spoke highly of the achievements in handling human rights cases in this area in 2019,such as the case of restoring the right to rest for workers suffering from special diseases,the matter of additional transportation subsidies for local minority residents,and the settlement of disputes between families with two or more children and relevant government organs.

She suggested that the main task of the local human rights commissioners in 2020 would continue to be stressed to protect the rights of vulnerable groups and to effectively carry out the routine work of protecting children,single mothers,and families with two or more children,retirees,children with disabilities,poor people and orphaned families with imprisoned guardians.

In 2019,among the main complaints received by the human rights commissioners of the Nenets Autonomous Area,the number of those related to housing ranked the first,including unfair allocation of emergency transitional housing,transitional resettlement of housing for the injured and sick,and illegal renovation of apartment buildings.Those related to labor rights ranked the second,such as workers’ medical security.The number of appeals related to criminal and administrative procedures increased compared with that of 2018.

The annual report is one of the main tasks of the human rights commissioners at all levels of the Federation.Each year,in the local parliaments,they will provide a unified summary and report on the basic human rights situation,the complaints received,the examination,prosecution,adjudication and implementation of human rights cases in their areas,and make a list of human rights priorities and prospects for human rights improvement in the coming year.

Since its implementation,this system has played a positive role in the collection and research of human rights-related information at the level of the Russian Federation.As a federal country with a vast territory,Russia is faced with problems including the lack of grassroots information and the lack of social attention to underdeveloped areas.With such reports,a database of human rights implementation and basic analysis of human rights protection are completed simultaneously in various administrative regions,which is particularly important for the collection of grassroots human rights data and the adjustment and formulation of follow-up policies.At the same time,since such reports are made to the local parliament of each administrative region,that is,the local power organ,they provide a feasible reference for the region,especially for the administrative authority of each autonomous region,to get a picture of the human rights situation within its own jurisdiction,to carry out administrative jurisdiction and adjust the social resources policies if necessary.

2.Human rights commissioners in Altayskiy Kray released an investigation report on the human rights situation in alleged detention centers in this region11.http://ombudsmanrf.org/news/v_rosi/view/v_altajskom_krae_proshla_sovmestnaja_proverka_sobljudenija_prav_cheloveka_v_sledstvennom_izoljatore_goroda_barnaula.

B.Larry,a human rights commissioner of the Altayskiy Kray,issued an investigation report in early 2020 in response to the high concern about human rights issues in the detention centers in this region.After receiving complaints of all human rights violations in a detention center in this region,he visited the detainees with C.Kiri,head of the criminal execution supervision department of the Altayskiy Kray Procuratorate.

In the detention center which got the complaint,the human rights commissioner,together with government officials,inspected the isolation rooms,detention rooms,etc.,checked its sanitary and medical conditions,and interviewed the detainees and the staff of the detention center separately.Upon completion of the above-mentioned tasks,B.Larry concluded that there was no evidence to support the allegation,and thus made a public response and report.

It was later revealed that the complainant was outside Russia,and this response was thus considered to be a response at the state level to media or institutions of other countries which questioned the human rights situation in Russia.

As is known to all,Russia’s human rights situation has always been heavily attacked by the European and US media,receiving a lot of criticisms.Russian human rights commissioner system provides a feasible way to deal with all kinds of criticisms by directly accepting overseas complaints and releasing authoritative investigation reports,that is,the authority can respond to overseas attacks on human rights in Russia through special institutions and procedures in a targeted way.

3.Promotion of legislation on military pensions by the human rights commissioners of Chelyabinskaya Oblast12.http://ombudsmanf.org/news/v_rossi/view/v_gosudarstvennoj_dume_rf_podderzhali_zakonodatelnuju_iniciativu_iniciirovannuju_upolnomochennym_po_pravam_cheloveka_v_cheljabinskoj_oblasti.

On March 13,2019,Andrei Krasovo,a member of Russian State Duma,reproposed a draft law to improve the one-time pension and monthly cash compensation system for military families at the proposal of the human rights commissioners of Chelyabinskaya Oblast.The proposal gained the support of 51 members of the Russian State Duma.

The draft began with an appeal accepted by a local human rights commissioner.In 2013,Alexei Kovalev,a human rights commissioner of Chelyabinskaya Oblast,received a complaint that the solitary grandmother of a young soldier who died in the army was not his immediate family and thus could not receive any pension after his death,although the soldier’s parents had died and he was raised independently by his grandmother,who had no source of income after his death.The commissioner assisted her in appealing to the Russian federal court,but the appeal was rejected for non-compliance with relevant legal provisions.Therefore,the commissioner turned to members of the State Duma to help amend the legislation,demanding that the pension system for military families be improved.The draft legislation was passed after the first reading by Russian State Duma at the end of 2019.13.In Russia’s legislative system,draft legislation needs to be passed by the State Duma after the third reading,submitted to the federal parliament for approval by voting,and then signed by the Russian president.

This is one of the human rights legislation achievements made by the Russian human rights commissioner system in recent years.The human rights commissioner system protects human rights and makes up for loopholes in human rights legislation through special legal means such as appealing on behalf of specific cases and proposing a draft amendment to the law with the help of State Duma members.

To sum up,in its practice,the Russian human rights commissioner system stresses and enhances the protection of the rights and interests of vulnerable groups in society,such as women and children,and low-income people,conducts supervision and inspection on relevant human rights issues which are concerns of the international community,listens to the opinions of the people in this region and gives corresponding help,at the same time,gives feedback to and supervises on the implementation of public power that violates citizens’ rights and interests,identifies and makes up for legislative loopholes,playing an important role in maintaining social stability and development and protecting citizens’ rights and interests.

B.Problems with the Russian human rights commissioner system

In the course of its development,the most important problems faced by the Russian human rights commissioner system can be summarized as follows:

1.Lack of coercive enforcement force

Since the Russian human rights commissioner system does not include exercising the coercive force of the state,its function of protecting human rights is mainly carried out through supervision.When determining whether there is a violation of human rights,it can only make recommendations,it cannot order a state organ to correct the violation that has occurred.Therefore,the effectiveness of the Russian human rights commissioners in the performance of their duties directly depends on their authority in the country and the support they gain from society.This has also become one of the most important problems hindering the development of Russia’s domestic human rights protection mechanism.

The Russian human rights commissioner system is characterized by the independence from any state agency or public official.This means that the human rights commissioners of the constituent entities of the Russian Federation are appointed by each constituent entity in accordance with its own regional law rather than federal law,a procedure that may not be fully in accordance with the provisions of the Constitution of the Russian Federation.The activities of the commissioners in carrying out their duties may be somewhat different from those in other federal entities of Russia and in the internationally prevailing system of human rights commissioners.14.M.Ю.Abramzina,M.r.Abramova,A.A.Arbatov,et al.,И.B.Yershuay,ed.Law and Economy:Paper Collections of International Conference Commemorating the 80th Birthday of Professor B C Mardemyanov (Beijing:Jurists Press,2012),340-346.А брамкинаМ.Ю.,АбрамоваМ.Г.,АлпатовА.А.идр.Правоибизнес:сборникстатеи I Международн оинаучно-практическоиконференции,приуроченноик 80-летиюсоднярожденияпрофессораВ.С.Мартемьянова/подред.И.В.Ершовои.-М.:Юрист,2012,с.340-346.For example,in the Republic of Tatarstan,the human rights commissioners may participate in the legislative process,but not every human rights commissioner of every republic has the right to propose draft legislation,and some constituent entities provide that the human rights commissioners can exercise this power only through the members of the State Duma.

In the author’s opinion,the unclear legal status of Russian human rights commissioners is theoretically related to the state restructuring in Russia in the transition period.After the collapse of the Soviet Union in 1991,Russia learned from the European and US systems to carry out national restructuring and social transformation.However,due to social and historical factors that Russia had followed the Soviet legal system and social systems for many years,it saw some incompatibility when adopting other legal and political systems,failing to fully consider its own development level and social needs.With experience gained from the pain of transformation,Russia has gradually shifted from total abandonment of the Soviet system and following the Western countries.Instead,it has begun to explore new directions for the rule of law and social transformation in many aspects according to its own social and national needs,learning from the development experience of developing countries including China.

2.Unclear division of duty and power

A common and important problem faced by the human rights commissioners in various regions of Russia is how to deal with complaints lodged by citizens against decisions or acts (dereliction of duty) of the state.In order to reflect the particularity of its functions and the importance of state human rights protection,the way in which the Russian human rights commissioners handle complaints should be clearly distinguished from other administrative agencies.However,theRussian Human Rights Commissioner Lawdoes not specify in detail the specific appeals procedure at the national level of the Russian Federation and how it is distinct from and has different functions to administrative review.In certain constituent entities of the Federation,the procedure for filing a complaint with the human rights commissioners is the same as that in theAppealing Procedural Law of the Russian Federation,15.Federal Law No.59-φ3:Appealing Procedural Law of the Russian Federation,which entered into force on 2 May 2006.Ф едеральныизаконот 02.05.2006 No 59-Ф3 ОпорядкерассмотренияобращениигражданРоссиискоиФед ерации.that is,“In the absence of a specific effective system in accordance with state standards,our human rights protection bodies are using standards of implementation that are not in accordance with the relevant state provisions for human rights protection.”16.A.Ю.Sungulov,“The Legal Protection Organizations of Society and the State:Possible Efficiency Standards”in Collections of Meetings on Changes in Russia:Political Agenda and strategy (PAIIH1 Press,2010),194-195.С унгуровА.Ю.Общественныеигосударственныеправозащитныеорганизации:возможныекрит ерииэффективности.МатериалымеждународноинаучноиконференцииИзменениеРоссии:политическ иеповесткиистратеrиn,Mосква,25–26 ноября 2010 г.-M.:PAIIH,2010,с.194-195.

Furthermore,in the constituent entities of the Russian Federation,the mechanism of the human rights commissioners guarantees that human rights and civil freedom are not interfered with by the executive branches of the constituent entities of the Federation,such as the police,the judiciary and the interior.In this context,a large proportion of the complaints filed with the Russian human rights commissioner relate to violations of the rights of citizens by these agencies.In this regard,most of what the local human rights commissioners can do is to seek assistance from the human rights commissioners at the federal level and to cooperate in the protection of civil rights and human rights affairs within the Russian Federation.

3.Insufficient funding subject to the budgets of the federal entities

According to Article 8 of theRussian Human Rights Commissioner Law,the constituent entities of the Federation may (but are not required to) establish human rights commissioners,whose funding is covered by the budgets of the constituent entities of the Federation.

The process of establishing plenipotentiary bodies in the constituent entities of the Russian Federation,followed by the appointment of human rights commissioners,involves relatively complex institutions and procedures.However,the appointment by the different constituent entities themselves faces new problems:the local human rights commissioners report directly to the headquarter offices of the human rights commissioner in Moscow,independent of the constituent entities,on respect for and protection of human rights and freedoms in the region,which is bound to be vigilant by administrative officials of some constituent entities of the Russian Federation,and the funding of human rights commissioners is subject to the restriction of the local administration.Under such circumstances,regardless of the personal performance of his or her duties and professional integrity,his or her actual work will be affected and even face serious interference.

4.Unspecified tenure and status of the human rights commissioners

Althoughthe Constitution of the Russian Federationmakes reference to the power source of the commissioners,17.Paragraph 1 of Article 45:protection of human rights and civil freedom in the Russian Federation;Paragraph 2 of Article 46:the decisions and acts of organs of state power,local governments,public organizations and state officials are subject to appeal;Article 71:the Russian Federation is responsible for (C) regulating and protecting human rights and civil freedom,civil rights and minority rights.there is still no official conclusion in Russia as to whether the commissioners belongs to the Russian state authority or if it is even a state organ.There are various opinions on the definition of the status of Russian human rights commissioners among legal experts in Russia.Some jurists believe that the concepts of“state organs”and“state power organs”are the same,while others believe that they are two independent concepts.In Russia,it is generally believed that the state power organs are an important part of state institutions,so as to perform state functions and realize state power.18.H.И.Matuzov,Л.B.Marka,History of the state and the Law (Beijing:Jurists Press,2004),90.МатузовН.И.,МалькоЛ.В.Теориягосударстваиправа:учебник.М.,2004.C.90.A.A.Beruglav believes that Russian human rights commissioner exercises executive jurisdiction.19.A.A.Beruglav,C.A.Saldadov.Constitutional Law of Russia (Beijing:Vocational Education Press,2001),318.Б езугловА.А.,СолдатовС.А.КонституционноеправоРоссии:учебникдляюридическихвузов:в3 т.М.,2001.Т.1.C.318.Zilkin believes that in the process of the internal development of state institutions,the fourth power,namely the independent human rights commissioner system,has gradually differentiated from the three traditional state powers of legislation,justice and administration.It has evolved from the legislative power and features independence and particularity as a modern protection institution for human rights20.B.E.Zilkin,Comparative Theoretical Foundations of state Theory (Archikur Press,1997),309-316.ЧиркинВ.Е.Основысравнительногогосударствоведения.М.,1997.C.309-316..

The unclear status leads to the lack of support from the state’s coercive force to judgments made by the Russian human rights commissioners,and in many cases,the relevant judgments can only state“it is recommended to implement this judgment.”At the same time,the lack of authorization also indicates that the actions of these commissioners are not monitored and controlled by state power.

Russian Human Rights Commissioner Lawdoes not specify the nature of the act of the human rights commissioners in examining complaints received,whether it is investigation or supervision.There is no clear answer for that in the academia.If it is an investigation,its behavior may lack specific legal consequences and have no actual effect;if it is a supervision,it may produce some serious legal consequences,but the institutions with supervision power need to be explicitly authorized by law,and illegal acts in the process of performing their duties may lead to legal consequences of violating specific laws,which is not clearly stipulated in theRussian Human Rights Commissioner LawAccording to the provisions on“review”in Articles 22 and 23 of theRussian Human Rights Commissioner Law,the concept is not backed with any compulsory measure,but only stipulates what kind of review the human rights commissioners have the right to carry out under what circumstances.According to the law,“review”is also the main legal means of the Russian human rights commissioner system in the practice of human rights protection in Russia.

It is worth noting that although the legal status of the Russian human rights commissioners is not clear,they have the same power as state organs,including:being legally recognized by the Constitution,the fundamental law of the state;although there is no legal coercive force,it has one of the constituent elements of state organs,that is,the organ that makes decisions has the authority that cannot be questioned;and the human rights commissioners have full power in the protection of human rights and civil freedom.The Russian human rights commissioners examine and handle complaints against decisions or acts (dereliction of duty) of government agencies,local governments and public officials.21.These complaints must have been submitted to judicial or administrative proceedings and rejected by the judicial or administrative body to which they were submitted.Despite the fact that the commissioner’s decisions are only recommendatory and not enforceable,they are still regarded as guiding and retroactive jurisprudence at the state level.

In the current judicial practice,the most important task of the Russian human rights commissioner is to examine the human rights affairs of Russia,receive and examine complaints over human rights.However,both theoretically and practically,Russian legal experts believe that the status and authority of the human rights commissioners need to be improved.

5.The practical effect falling short of expectation

Due to the shortage of funds and professionals,as well as the lack of relevant legislation,the number of Russian human rights commissioners is insufficient.This mechanism is not yet fully covered in some constituent entities of the Russian Federation and,to date,this protection mechanism has not been established in some remote areas.In addition,due to the above-mentioned problems,the effects of the human rights commissioner system in practice falls short of expectations.In 2016,the recovery rate of the rights of complainants in human rights cases brought to the Russian federal court was about 6%-12%.In addition,according to the Russian government’s annual report on human rights,by 2018,the number of complaints received by the Russian human rights commissioner in a year had increased significantly from 57,000 in 2010 to 184,797.However,the satisfaction rate of citizens in the same year with the protection of human rights in Russia was only 17%.22.https://rg.ru/2019/06/11/al701940-dok.html.

IV.Causes of the Problems Faced by and the Prospects of Russian Human Rights Commissioner System

The urgent problems of the Russian human rights commissioner system,as mentioned above,are directly related to the historical and political factors of the Russian Federation itself.

First,few European countries have such a vast territory and complicated administrative mechanism as Russia.As the country with the largest territory in the world,Russia’s federal entities are divided into four categories,namely,republics,krais,oblasts and federal cities.Different federal entities enjoy different political and economic powers,with different administrative divisions to some extent.Such a complicated framework has caused certain obstacles in introducing foreign systems,including the human rights commissioner system.The solution must be based on full consideration of Russia’s own special political environment.

Second,during the chaotic period of the collapse of the Soviet Union,the strengthening of administrative power and the weakening of judicial power greatly affected the operation of all state institutions with law enforcement functions in Russia.To this day,Putin,as head of the administration,is still entitled the power to exert influence on judicial and legislative reforms.If the human rights commissioner system,which has the right to supervise and restrict the executive organs,is to be continuously improved in Russia,it must have stronger support from legislation.

Third,the Russian human rights commissioner system also undertakes the duty and role of human rights publicity,including receiving complaints from overseas and regularly releasing review reports to the public.The international response to the Russian human rights commissioner system is subject to the influence of European and American powers that have a say on human rights,as well as the international political situation.With the crisis in Ukraine and the intensifying relations with the US,Russia’s human rights situation has been criticized by international human rights organizations,which is a common problem facing developing countries.

Amid the current complex social and international situation,in order to deal with the criticisms and challenges of different human rights issues from home and abroad,the Russian human rights commissioner system needs to be adjusted in the following aspects on the basis of full consideration of the above-mentioned factors.

1.Striving for the right of the Russian human rights commissioner to propose legislation and improve it legal status

In 2015,the Russian president launched a discussion on improving the supervision efficiency of the human rights commissioners.Polls and opinions of individual experts show that the incompetency of Russian human rights commissioners to perform their duties mainly results from the lack of coercive enforcement power and the power to repair the deficiencies in human rights protection.

Russian opinion polls generally believe that both the ability of Russian human rights commissioners to perform their duties and their legal status should be improved,and one of the most efficient and effective ways is to entitle them the right to propose legislation.This will greatly enhance the status of the human rights commissioner system and uphold its authority to protect human rights and civil freedom.Under Russia’s current legislative mechanism,the right to propose legislation belongs to State Duma members,Russia’s Supreme Court and Supreme Procuratorate,etc.And the human rights commissioners have not yet enjoyed the right to propose legislation universally (although this right has been realized in some federal entities).The existing power enjoyed by the Russian human rights commissioners to fill the loopholes in human rights legislation is mainly that the human rights commissioners propose draft legislation jointly with members of the State Duma at the local or federal level.This situation is obviously no good to the Russian human rights commissioners in the practice of human rights protection to quickly fill legislative loopholes and improve the human rights legislative system.

At the same time,the 2020 Amendment to Russia’s Constitution specifically stipulates that after its implementation,the Russian Constitutional Court may,after exhausting other means of domestic legal protection,accept complaints filed by Russian citizens,legal persons,Russian human rights commissioners,social organizations and other institutions in accordance with the Constitution on cases of violation of constitutional rights and civil freedom and review their constitutionality,to strengthen the legislation and judicature on human rights protection.

2.Strengthening the construction of Russian human rights commissioner system

With the largest territory in the world,the Constitutional Court of the Russian Federation,the prosecutor offices at all levels (subordinate to the Russian procuratorial system) and the Russian human rights commissioner offices constitute a three-level public power human rights protection mechanism in contemporary Russia.However,since the power to set up a human rights commissioner resides in the federal entities,Russia has not yet completed the construction of a comprehensive human rights commissioner system.

The latest developments of the systematization of human rights commissioners can be divided into three aspects,namely,increasing the headcount of existing human rights commissioners,building a human rights commissioner system covering all regions of Russia,and increasing the clarity of its internal division of labor to form a more professional legal advisory team.

The number of complaints received by the Russian human rights commissioner is increasing year by year,but its examination and settlement efficiency are limited due to the shortage of human resources.The current total headcount of Russian human rights commissioners is about 200,which is far from enough for Russia,a country with a vast territory and complex administrative hierarchy.

In terms of its systematic distribution and specialization,at present,81 of Russia’s 85 federal entities have their own human rights commissioners,and in Moscow,St.Petersburg and some other large cities,separate posts of child rights commissioners have been added.23.Datasource:https://www.garant.ru/article/621669/.More efforts are needed to build a human rights commissioner system that covers the whole of Russia and a specialized division of labor system.

At the same time,in order to address the issue of expertise in the cross areas of human rights protection,the office of the commissioner for human rights has set up a team of experts from different fields of law,including experts in the various sectors of law,representatives of state institutions and scientific researchers,to help citizens who file complaints receive professional guidance in legal consultation and learn about the possible options for protecting their rights.However,due to the lack of funds and the defects in their legal status,it is difficult to attract first-class legal talents to join.How to obtain more financial investment and build more professional teams is an urgent question for the development of the Russian human rights commissioner system.

3.Establishing a more effective response mechanism to international public opinion

The annual report system and public report mechanism of the Russian human rights commissioner,as one of the most important means of human rights publicity in Russia,make public the number,content and settlement form of domestic human rights cases in a unified way and accept the supervision of domestic and foreign communities,which serves as an official channel for the questioned Russian human rights legal system to defend itself and reply to disputes.The domestic human rights protection systems of developing countries have long been a concern of and criticized by international public opinion.Taking the initiative to disclose the contents of human rights complaints and guide international public opinion will make it easier to obtain an active voice.

“With the multiplying transnational and global human rights problems facing mankind,many human rights problems are no longer exclusive to one country and can no longer be dealt with by one country’s efforts.”24.Zhang Wenxian,“Human Rights Jurisprudence in the New Era,”Human Rights 3 (2019).Fourth,strengthening interaction and cooperation with international public opinion,serving as open and smooth channels for complaints and an authoritative platform for responding to queries have become one of the new missions of the Russian human rights commissioner.

Russia’s development practice shows that although there is still room for improvement in the practical effect of the human rights commissioner system,it provides strong support for the construction of a bridge between the state and society,the protection of civil rights and freedom,and the provision of human rights advice and legislative suggestions to state organs at all levels.For countries with vast territory,how to set up a human rights protection organization and set up the level,authority and operation mechanism of this organization,so as to ensure the smooth channels of receiving complaint and communication for the protection of human rights in the whole country,and then maintain social stability,and sustainable development,the Russian human rights commissioner system provides a reference of both practical and theoretical significance to solve the problem.