These three books are devoted to a problem of considerable concern, for different reasons, to both the Russian Federation and human rights advocates, namely: the legal status and treatment of refugees and displaced persons within the Russian Federation.
As a result of the dissolution of the Soviet Union in 1991 and, more recently, of the upsurge of various independence movements within the Russian Federation, Russia has experienced a considerable influx of both “refugees” and “displaced persons.” Although both terms denote dislocated persons, they differ in certain fundamental legal and practical respects. Under the existing legislative regime, the term “refugee” (беженец) refers to non-Russian citizens who find themselves outside the country of their citizenship because of a “fully justified threat” of persecution on the basis of their race, religion, citizenship, nationality, membership in a group, or political opinion, and who, in light of that threat, are unable or unwilling to avail themselves of the protections available in their country of citizenship.^[1] The vast majority are nationals of other CIS states; the rest come primarily from Africa and Afghanistan. Many do not speak Russian. None, by definition, enjoys the right of Russian citizens to remain indefinitely within the Russian Federation. Their first priority is usually to gain the right to remain in Russia, even if only temporarily, until they can make some adequate provision for their future. “Displaced persons” (вынужденные переселенцы), on the other hand, are defined as citizens of the Russian Federation who have left their place of residence because they or their families were persecuted or faced a “real threat” of persecution on the basis of their race, nationality, religion, language, membership in a social group, or political opinion.^[2] Displaced persons thus enjoy all the rights and privileges afforded to them as Russian citizens, most notably the right to remain within the Russian Federation. The vast majority speak Russian. More than anything else, they need help to reestablish themselves economically and socially in their new surroundings. Temporary housing is often their first concern.
The three books under discussion examine, in theory and practice, the matrix of laws and administrative procedures on the federal, regional, and municipal levels that have been implemented in response to the distinct problems posed by, and facing, refugees and displaced persons in Russia. They comprise materials presented at three seminars held between 1997 and 2000 under the auspices of the Russian human rights organization “Memorial,” a non-governmental body whose stated purpose is to make legal assistance accessible to every refugee and displaced person in Russia and to combat locally enacted laws that violate the Russian Constitution and Russian federal legislation. All three books contain extensive appendices with the full texts of relevant treaties, laws, and several judicial decisions. The thrust of all three books is that progress has been made, but much remains to be done to bring Russian legal practice in line with international norms and Russia’s obligations under applicable international treaties and accords.
Any analysis of the Russian legal framework must begin with Russia’s relevant international obligations. In 1993 Russia acceded to the 1951 Geneva Convention relating to the Status of Refugees and to the related 1967 Protocol, which expanded the scope of the Geneva Convention to include persons who became refugees after 1951. The Convention and Protocol, as international agreements to which Russia is a party, are a constituent part of Russian law with “direct effect” throughout the Russian Federation by force of Article 15 of the Russian Constitution of 1993. Moreover, they take precedence over conflicting provisions of Russian law.
Article 16(1) of the Geneva Convention requires, among other things, that signatory states afford refugees “free access” to their courts of law. This is a key provision because refugees are not expressly entitled under the Convention and Protocol to remain in the host country. Rather, the criteria for permitting refugees to stay are left largely to the domestic legislation of the signatory states, although that legislation is to be consistent with the Convention and Protocol. The contracting states, for example, are barred under Article 32(1) from expelling refugees except for reasons of “national security or public order”. Further, Article 32(2) of the Convention requires that any decision to expel may be made only pursuant to a decision rendered in accordance with due process of law. Accordingly, refugees in Russia, as in other signatory states, are dependent on the legal framework of the host country and subject to the vicissitudes of its application in practice. Should access to the courts be denied, or should the legal regime itself be flawed, then refugees can find themselves effectively denied even the minimal protection offered by the Convention and Protocol.
Accordingly, the earliest of the three books, whose title may be translated as “Legal Aid Organizations for Refugees and Displaced Persons in the Cities and Regions of Russia” (Moscow 1997), largely focuses on the problem of providing refugees and displaced persons with effective legal assistance. It comprises materials from Memorial’s first seminar, entitled “Organization of a Network of Legal Consulting Firms in Russia for Refugees and Displaced Persons,” which received funding from the United Nations High Commission for Refugees. The primary task for the advocates of refugees and displaced persons in Russia, as one contributor put it, is “to make the laws work”.^[3]
This task is twofold. First, the laws themselves must be rendered adequate. Here Memorial has been active in working to revise the existing legal framework. One example of such a contribution is embodied the Refugee Law,^[4] which has been through a number of revisions. The amended law, as discussed in the book, is an improvement over the original in a number of respects. The Refugee Law now contains the category of “temporary asylum,” which permits the authorities to grant temporary status to victims of armed conflicts and others who do not fit neatly into the definition of “refugee” (although, as noted below, this provision has not been effectively implemented by the government). The amended law has also brought the original law’s definition of “refugee” into line with that provided in the Convention – a step toward aligning Russian federal legislation with Russia’s treaty obligations. Unfortunately, the Refugee Law still contains provisions of some concern. It now contains an expanded list of grounds for refusing to grant petitions for refugee status. Moreover, its definition of the term “safe state of transit” is unclear, the result being that refugees could face the prospect of being sent to countries where they would be in danger.^[5]
The other principal task in “making the laws work” entails ensuring that the Russian legal framework, however imperfect, is at least properly applied and refugees have meaningful access to the legal process. Accordingly, a number of contributions in this book describe initiatives to set up a network of legal assistance centers, computer networks, and other initiatives.
The second book, entitled (in English translation), “Violation of International Norms and Russian Legislation relating to the Rights of Refugees and Displaced Persons” (Moscow, 1998), is a collection of material from Memorial’s third seminar, entitled “Organization of a Network of Legal Consulting Firms in Russia for Refugees and Displaced Persons,” which took place in the autumn of 1997 and, like the first, received funding from the United Nations High Commission for Refugees. The materials in this book focus largely on deficiencies in the existing legal regime and on initiatives taken to rectify those deficiencies. One contribution, by V. Yershov, Chairman of the Russian Law Academy of the Ministry of Justice, examines the problem of bringing federal, regional, and local legislation into line with Russia’s treaty obligations and Constitution.^[6] The Russian judicial system itself imposes certain restraints. Unlike their counterparts in the United States, Russian courts of general jurisdiction do not have the power of “judicial review”; that is, they cannot strike down a statute as unconstitutional.^[7] Instead, as Professor Yershov notes, Russian courts are limited to either (1) not applying the suspect law and noting in the decision the constitutional norms it contravenes, or (2) adjourning proceedings and referring the question to the Constitutional Court for review. In either case, the law remains in force unless and until the Constitutional Court should strike it down. Moreover, judges have been known to apply regional or local laws despite their suspected constitutional infirmities.
The third book, entitled (in English translation), “The State of Administrative and Judicial Practice with regard to Questions concerning the Position of Refugees and Displaced Persons” (2001), contains materials from Memorial’s eighth seminar, which took place in the autumn of 2000 and was devoted to the subject of “Migration and the Law – Organizing a Network of Legal Consulting Firms in Russia for Refugees and Displaced Persons.” Its appendix contains somewhat more specialized materials than do the preceding two volumes, including the full texts of Russian laws on wages and other labor-related issues, pensions, and living conditions (most of the key treaties and laws having been set forth in the preceding two volumes). Some of the contributions also address these particular issues in some detail.
Of more general interest are the analyses provided of the problems associated with administrative measures and policies on the federal, regional, and local levels. For example, as noted above, the Refugee Law contains a provision for temporary asylum (Article 12), but, at least as of the time of the article’s writing, temporary asylum had not been offered to any refugee because the government had not issued the necessary implementing regulation as required under the Law.^[8]
Thus, here as elsewhere one can say that there has been a gulf between theory and practice. The interests of the state, whether real or imagined, are always likely to prevail over the interests of disorganized masses of displaced persons and, especially, refugees, who do not even have the right to vote and often do not speak the language. This is where civil society organizations like Memorial have stepped in and, through organization, recourse to the courts, and public awareness initiatives, have helped shift the balance at least somewhat toward greater protection of those driven out of their homes by persecution and violence.