Право/8.Конституционное право.

PhD in Law, Associate Professor, Chuksina V.V.

Baikal State University of Economics and Law, Russia

The Commissioner for human rights in the Russian Federation in the light of international standards of national human rights institutions

The responsibility to respect, protect and fulfil human rights lies with States. An independent judiciary, effective and representative legislative bodies, law enforcement agencies, national human rights institutions and civil society, together are involved to the governance of human rights. Among these, National Institutions for the Promotion and Protection of Human Rights (NHRIs) occupy a unique position. NHRIs are expected to be the «key elements» of a strong and effective national human rights protection system, helping to ensure the compliance of national laws and practices with all international human rights norms [1].

In 1991 adopted by NHRIs at an international workshop held in Paris, «Paris Principles» marked the beginning of standardization of NHRIs. The Paris Principles are the principal source of normative standards (that define the minimum attributes of national institutions with respect to their legal foundation, membership, mandate, funding and so on) for NHRIs. The Paris Principles require NHRIs to have two central roles: human rights promotion (creating a national culture of human rights) and human rights protection (helping to identify and investigate human rights abuses). The United Nations Commission on Human Rights and the General Assembly later endorsed Paris Principles, determining to the effectiveness of NHRIs [5, Р. 73-76 ]. The 1993 World Conference laid the groundwork for its successor, the International Coordinating Committee of national institutions for the promotion and protection of human rights (ICC).

In the past 20 years, the number and institutional diversity of NHRIs is rapid growth. NHRIs can be grouped together in two broad categories: human rights commissions and ombudsmen. Depending on the country the mandates and powers of NHRIs vary widely. The ombudsmen model is common in Central and Eastern Europe, Central and South America and in the Commonwealth of independent states.

Institution of ombudsman has received worldwide recognition as a specific mechanism of control over the legality and fairness of public administration. It is known that Sweden is a «homeland» of the classical Ombudsman. Swedish institution was created by the Constitution of 1809.

The International Bar Association defined the Ombudsmen as: an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high-level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports [3, Р.29].

For his two centuries history classical ombudsmen model has demonstrated the ability to modernize and adapt to the specific state and legal conditions and traditions of different levels of democratic development of countries. Many modern ombudsmen (post-ombudsmen institutions) have human rights mandates [2].

The research of common and special about the realization of conception of ombudsman institute in our country represents interest from the scientific point of view of constitutional law. It also has the obvious practical importance for the improvement of public administration and non-judicial protection of rights and freedoms of human and citizen of Russia.

For the first time the idea of creating the Russian Ombudsman had officially adopted in November 1991. RSFSR Supreme Soviet adopted a decree «Declaration of the rights and freedoms of human and citizen», according to which (Article 40 § 1), «Parliamentary Control over the observance of the rights and freedoms of human and citizen in the Russian Federation rests with the Parliamentary Commissioner for Human Rights» [7]. The Constitution of the Russian Federation in 1993 (article 103 paragraph «e» part 1) had provided the position of Commissioner for Human Rights. It identified that it will be established by the Federal Constitutional Law. However, despite the fact that the bill of Human Rights Commissioner was developed, and Acting Commissioner was appointed, this idea a long time did not receive legislative development.

Russia's accession to the European Council in 1996 and ratification of fundamental European conventions had stimulated the incorporation of international standards on human rights and freedoms in the Russian legislation and law enforcement practice. In 1997 the Federal Constitutional Law «On the Commissioner for Human Rights in the Russian Federation» (hereinafter referred to as «the Law») was passed [6]. This new state office was established on May 22, 1998.

The Paris Principles provide that a national institution guaranteed independence, shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.

Independence and autonomy of the Commissioner for Human Rights in the Russian Federation (CHR RF) from government guaranteed by constitution and law. The Law states that the Commissioner shall be appointed to his post and shall be dismissed from his post by the State Duma of the Federal Assembly of the Russian Federation (Article 1.2); the Commissioner in discharging his duties is independent and is not accountable to any state bodies or officials (Article 2.1). Article 11 of the Law states that the Commissioner cannot simultaneously hold the post of a deputy of a legislative (representative) body of the Russian Federation, cannot be involved in public service, be engaged in political activity, in any other paid or unpaid activity (with the exclusion of creative or lecturing activity). The Commissioner possesses immunity during all of his term of office. Without the approval of the State Duma he cannot be made answerable before the courts in criminal or administrative cases, detained, arrested, subjected to a search (excluding the cases of being detained in the act of committing a crime), as well as be subjected to personal inspection, excluding cases provided for by federal law for ensuring the security of other individuals. The Commissioner’s immunity applies to his living and office premises, private and service transport, correspondence, communication facilities, and also to the documents belonging to him (Article 12.1). Interference in the activities of the Commissioner with the aim to influence his decision; non-execution by officials of their duties prescribed by the present law; obstruction of the Commissioner’s activity on other forms, carry the responsibility defined by the legislation of the Russian Federation (Article 36). In addition to being independent the Office of the Commissioner must be financial independence. Article 38 states financial independence the Office of the CHR RF.

Article 37 creates the Office of the Commissioner to support the activities of the Commissioner and to provide legal, organizational, analytical, informational and other support. The Commissioner and his Office represent a state body and have the rights of a legal person, a pay account and other accounts, its own seal and official letterheads.

Posts of regional commissioners for human rights can be established in every subject of the Russian Federation (Article 5). A regional commissioners not subordinate to the federal CHR. They act independently within their respective regional mandates. For coordination of activities of regional commissioners a Coordination Council has been established by the federal CHR.

The Office of the CHR realizes principles of pluralism, including through membership and effective cooperation Council of Experts. The Council of Experts includes representatives of major NGOs, law scholars and experts, prominent human rights activists.

Analysis of the Law indicates that the objectives, functions, and the range of responsibilities and methods of operation, scope of competence (in relation to the subjects and objects of legal relations) of the CHR RF are substantially similar to the modern post-ombudsmen institutions. It is natural that the CHR RF granted «A» accreditation status (compliance with the Paris Principles) by ICC Sub-Committee in November 2008. The ICC Sub-Committee notes the following:

1) It recommends that the Office of the CHR engage systematically with the international human rights system as well as the European human rights system;

2) It encourages the continued interaction of the Office of the CHR with civil society organizations;

3) It encourages the Office of the CHR to institutionalize the cooperation with the regional human rights institutions of the regions of the Russian Federation;

4) Selection and appointment of the governing body and in particular the need for the appointment process to be transparent [4].

Despite such a high international rating, the problem of improving the state of human rights institution is important. For example, in contrast to the global practice the of ombudsmen functioning the opportunities of CHR of the Russian Federation to participate effectively in the improvement of the law (the absence of rights of legislative initiative, the official making conclusions on the bills, direct appeal to the Constitutional Court, etc.) are clearly inadequate because of the novelty of the legal and as a consequence, imperfection of the constitutional Law on the Commissioner. It is clear that the correction law is impossible without changing of Part 1 of Art. 104 of the Constitution of the Russian Federation, which sets the range of subjects of legislative initiative. There are other disadvantages of legislative support of the Russian concept of the Ombudsman.

For example, in 2009 the universal periodic review of the Russian Federation the adoption of a federal framework law, which more clearly defines the powers of regional ombudsmen and ensuring uniformity of these structures was recommended, which could become part of a strategy for creating the institution of regional commissioners across the country.

Removal of the existing legal gaps can significantly enhance the status and role of the Commissioner for Human Rights in the Russian Federation and create a single efficient system of public-legal protection of human rights.

Bibliography:

1. A/HRC/7/69, Report of the Secretary-General on national institutions for the promotion and protection of human rights. 7th, 14/01/2008. – URL: www2.ohchr.org/english/A/HRC/7/69/reports.htm

2. Chuksina V.V. Extrajudicial human rights protection: post-ombudsmen institutes // Constitutional and municipal law, 2011. N 6. P.33-35.

3. International Bar Association Resolution. Vancouver, 1974. P.29.

4. International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. Report and Recommendations of the Session of the Sub-Committee on Accreditation. Geneva, 3-6 November 2008. – URL: http://documents.un.org/simple.asp

5. Principles relating to the status of national institutions (annexed to General Assembly resolution 48/134) // National Human Rights Institutions: Professional Training Series No.4. Geneva: Centre for Human Rights United Nations Office at Geneva, 1995. Р. 73-76.

6. The Federal Constitutional Law «On the Commissioner for Human Rights in the Russian Federation» of February 26, 1997 N 1-FKZ // Collected Legislation of the Russian Federation1997, N 9, art. 1011; 2006, N 43, art. 4411; 2008, N 24, art. 2788, 2011, N 1, art. 1.

7. The Resolution of the RSFSR Supreme Soviet on November 22, 1991 N 1920-I «On the Declaration of the rights and freedoms of human and citizen» // Bulletin of the Congress of People's Deputies and Supreme Soviet of the RSFSR, 1991. N 52. art.1865.