Author: Elena Lukyanova

First and foremost, the priorities have changed.

 

Two of the most important rights of the third-generation human rights, which took shape in the 1970s and 1980s, have suddenly gained top priority and importance. These are the right to peace and the right to humanitarian assistance. The barbaric imperialist existentialist war unleashed by Russia against Ukraine, unthinkable for several generations of Europeans, has shifted all the emphases in the framework of rights and freedoms. The understanding that peace and the safety of human life are key conditions for the respect of all other rights settled on a new layer of social consciousness—by the time the war began, most people in Europe have become deeply aware of the importance of the principle of the rule of rights and freedoms in achieving the best public progress deliverables.

Mankind has developed its understanding of the essence and meaning of rights and freedoms in a progressive way. In the same way, legal science has gradually analyzed and systematized this knowledge. It has emphasized a few generations of rights in line with their formation stages and interconnections (the term was first coined by the Czech jurist Karel Vasak, Secretary General of the International Institute for Human Rights, Strasbourg).

The first-generation rights are personal and political rights, which were formed in the constitutions of European countries during the bourgeois revolutions of the 17th and 18th centuries. They are based on the ideas of natural law and liberal values declared in the works of T. Hobbes, J. J. Rousseau, and J. Locke. The first generation of rights imposed on states an obligation to refrain from excesses against individuals and to create conditions for the full inclusion of citizens in political life, and over time, international protection was extended to cover these rights. The first-generation personal (civil) and political rights are interpreted by international and national instruments as inalienable rights that cannot be restricted in any manner or on any grounds. These rights are enshrined in the International Covenant on Civil and Political Rights of December 19, 1966.

The second-generation rights emerged when people realized that human dignity required more than the non-interference of the state proclaimed by civil and political rights. These rights are enshrined in the International Covenant on Economic, Social and Cultural Rights and in the European Social Charter of the Council of Europe. They are based on the ideas of equality and guaranteed access to basic socialand economic goods, services and opportunities. The second-generation rights are more relative than the first-generation rights, as international law does not set any strict requirements for ensuring these rights, and the obligation to fulfil them is not only imposed on the state, but also on the society as a whole depending on its social and economic development level.¹

The third generation of human rights are so-called collective solidarity rights: the rights to development, peace, nuclear safety, a healthy environment (including the climate), the common heritage of mankind, and the right to communication linked to the new concept of international information and communication order. These are the rights that are exercised, on one hand, taking into account the position and efforts of each individual state, yet a proper result can only be achieved through collectively developed measures. The difference between the third generation of human rights and the first two generations is that they are international by definition and provide for the protection of an individual’s interests not just as part of the social community of a particular state, but of the entire human community. Forming the prerequisites for the protection of these rights requires overcoming national (state) egoism in favour of uniting the efforts of numerous states and shaping common solutions. This is exactly what we have seen in the last six months, when countries, arguing about their specific values and individual identity, suddenly realized the real threat to a much more important value – the value of peace. This led to the massive support for Ukraine, the sanctions against Russia, and caring for refugees. It was roughly the same with climate actions. Countries behaved rather passively until climate change became obvious. Extreme heatwaves, fires and floods moved the process of taking consolidated international decisions off the dead point.

Well, certainly, alongside the rethinking of priorities, there is an ongoing debate on the subject matter and scope of the legal regulation of the fourth-generation rights, the somatic rights. New scientific discoveries, in particular in genetic engineering and organ and tissue transplantation, have exposed many ethical and human rights issues (gender reassignment, organ donation, reproductive rights, cloning, euthanasia). Scientific and technological advancements in these areas forced questions about the very nature of life. The Council of Europe responded to this challenge of the times with a new international instrument, the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention, 1997).

However, the priorities have clearly changed. And this is along with the dramatic increase of the role of the international community and international law in the process of establishing and protecting human rights. Opposition to war became a universal human ethical norm.

Second, the revaluation of the place and significance of third-generation rights in the entire human value framework has revealed an entire range of new and old issues that are not yet fully understood, which relate to human rights to a certain extent. Respectively:
– we have seen an increasing focus on the issue of human rights in the context of modern warfare, a new perspective on war crimes, and the efficiency of implementing international instruments protecting human rights in wartime;²
– the issue of assessing states’ good faith in fulfilling their international obligations linked to the breach of human rights and freedoms and the issue of responsibility for the failure to fulfil them have become obvious;
– we saw an emerging need to develop dedicated criteria to identify mock democracies combining democratic governance with authoritarian rule. After all, these mock democracies are the potential warmongers;
– it has become obvious that the old issue of the relation of the right to peoples’ self- determination to the principles of states’ territorial integrity and border inviolability has become dangerously sensitive when addressing war and peace matters;
– the approach to the “sovereignty” notion has evolved from its Westphalian meaning. Sovereignty has transformed from the domestic to an international legal dimension. The issue of the unscrupulous manipulation of this term has emerged;
– an entirely new issue emerged of the collective guilt and collective responsibility of a society for the aggressive activities and war crimes of their states;
– another issue, which has also come forward, is that of collective dependence on one’s citizenship in a war context and international sanctions against an aggressor country.

Third, the possibility of unleashing a war in Europe in the 21st century revealed the lack of capacity of the collective security framework shaped after World War II. It has also become obvious that the international community is lagging in distributing responsibilities and lacking accountability in ensuring the right to peace as the key condition for the respect of human rights.

ll the points listed above represent modern human rights challenges that life has mainstreamed in today’s reality of the global community. The addressing of these matters cannot be postponed.

However, in Russia, human rights no longer exist after February 24, 2022. On December 31, 1999, assuming his office as Russia’s president, Vladimir Putin said: “Today, I am entrusted with the head of state responsibilities. The freedom of speech, the freedom of conscience, the freedom of mass media, property rights – these fundamental dimensions of a civilized society will be firmly protected by the state”.³ Following 21 years of his ruling, on February 25, 2022, the Council of Europe suspended Russia’s membership because of Russia’s invasion of Ukraine. On March 15, Russia announced the beginning of its withdrawal from this organization. On March 16, 2022, the Committee of Ministers of the Council of Europe took the decision to exclude Russia immediately. Russia consequently withdrew from the ECHR jurisdiction. Under these conditions, the Russian parliament, the Russian judicial and law enforcement systems, no longer restricted in their actions, stepped up the adoption of unlawful bills and rolling out repressive policies, while repeatedly violating the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Voting rights and the electoral situation.

 

In fact, citizens have completely lost any possibility of participating in state governance. During the rule of Vladimir Putin, the referendum institution has been almost ruined. The referendum-holding procedure was transformed in such a way that it became impossible to hold a referendum that the government does not wish to happen.

Elections, too, have almost completely fallen outside the freedom and fairness criteria. Political competition has sharply decreased. Firstly, due to the 2020 amendments to the Constitution, the active suffrage right was significantly restricted: thousands of Alexei Navalny’s supporters were forced to withdraw from the electoral process because his organization, the Anti-Corruption Foundation, was unlawfully declared an extremist organization. Secondly, a great number of civic activists were forced to flee the country after the war began under the threat of criminal prosecution. Third, the preventive measures previously used to stop the opposition participating in elections at any level became massively widespread.

Candidates in the 2021 parliamentary election and the 2022 municipal election were rejected and disqualified on no serious grounds under fictitious or far- fetched pretexts. For example, an administrative case was initiated against the parliamentary candidate Konstantin Yankauskas under the article on discrediting the army for his social network post containing a Pope’s prayer for peace and, as a result, he was removed from the list of candidates.⁴

The voting rules per se were changed in a way that preemptively allowed for a lawful falsification possibility (three-day voting without the mandatory guarding of ballots, voting outside the premises of polling stations, significant public control limitation, no action from law enforcement bodies and the court in case of recording and appealing violations). Also, a remote electronic voting system was introduced with no public control, and the results of such voting were very different from the voting results at polling stations. With that, the state has intentionally introduced a systematic framework making it impossible to build full-fledged people’s representation bodies and for the opposition to participate in their activities.

Freedom of mass media.

 

On February 24, the day when Russia’s aggression in Ukraine started, Roskomnadzor (the Federal Service for the Supervision of Communications, Information Technology and Mass Media) required that the media publish only “data from official Russian sources” about the war with Ukraine with potential sanctions in the form of fines of up to 5 million rubles and blocking if they failed to follow this resolution. On February 26, the Agency required a number of media outlets (Echo of Moscow, InoSMI, Mediazonа, New Times, TV Rain channel, Svobodnaya Pressa, Crimea.Realities, Novaya Gazeta, Journalist, and Lenizdat) to remove their publications on the war in Ukraine. Their journalists were banned from calling the “Russian special operation” an attack, an invasion, or a declaration of war. Later, the websites of more than 30 independent titles were blocked; some outlets were liquidated or had their licenses revoked (the Echo of Moscow radio channel, Novaya Gazeta). Some, unwilling to put up with the demands and not being in a position to call the war a special military operation, suspended their activities voluntarily (TV Rain Channel, Tomsk-based TV2 agency, Znak.com, The Village). Most independent journalists and many editorial offices were forced to relocate outside the Russian Federation.

Freedom of information. The Internet.

 

As has been repeatedly emphasized by various experts and institutions, the Internet is one of the key technologies for rapid and decentralized information exchange, where responsibility for the content of publications is also distributed among different stakeholders. This makes the Internet fundamentally different from traditional media. This, as well as the availability of technologies for ordinary users, has made the web the main channel to express opinion today. Nevertheless, the authorities of various countries, including Russia, are trying to gain control over the Internet within their national borders: they are restricting the use of foreign servers, forcing large IT companies to open offices inside Russia, installing hardware at cross-border exchange hubs that blocks targeted information sources, etc.

Russia is actively using the sanction of blocking Internet resources. Over the past ten years, blocking has become one of the most widespread tools for restricting access to information and freedom of expression. Although the first legislative changes expanding the blocking options and simplifying this procedure appeared as early as 2012, there is still very little research or reports on the situation, and it has not been widely published beyond narrow human rights and expert communities for a long time. The improper documenting of violations of international human rights norms and standards further contributes to the current situation of, de facto, comprehensive Internet censorship of alternative information.

Since the beginning of the war, 138,000 Internet resources have been blocked in Russia (Prosecutor General of the Russian Federation Igor Krasnov said that during the war in Ukraine, “over 340 prosecutors’ requests to block false public information about the special military operation were satisfied in Russia”). The blocking of Internet resources has evolved into open political censorship.⁵ Among other things, the government has restricted the operation of the social networks Facebook, Twitter, TikTok and Instagram in Russia. Anti-war publications on social networks have been increasingly used to hold citizens to account under administrative and criminal law.

Restricting academic rights and freedoms and the freedom of creativity.

 

In Russia, university professors are being unlawfully dismissed and students expelled if their stance on the war or the Russian political regime does not fit the official position. Musicians’ performances are being banned, movies cancelled, and works by directors who have spoken out against the Russian aggression in Ukraine removed from theatrical programs. From September 1, 2022, weekly patriotic education lessons explaining the goals and objectives of Russia’s “special military operation” in Ukraine have been introduced in all schools, history textbooks are being revised.

Foreign agents.

 

Since 2012, the term “foreign agent” has been introduced in the Russian legislation. At first, this “title” was assigned to NGOs engaged in “political activities” and receiving foreign funding. The phrase “political activity” is placed in quotation marks, because its definition is highly questionable from the required legal certainty requirement: actually, any journalism, human rights and expert activity, as well as any public debate on a socio-political topic can fall under the political activity definition. Let’s see: “An organization that is considered to be engaged in political activity shall perform activities in the field of state-building, protection of the foundations of the constitutional system, federal structure, the protection of sovereignty and ensuring territorial integrity, ensuring the rule of law and order, state and public security, national defence, foreign policy, socio- economic and national development of the Russian Federation, political system development, activities of government agencies, local self-governance bodies, the legislative regulation of citizens’ rights and freedoms to influence the development and implementation of public policies, the structuring of government bodies, local government agencies, and their decisions and actions (from the laws “On Public Associations” and “On Non-Profit Organizations”).⁶

From 2013 to February 2021, 200 NGOs were recognized as “foreign agents” in Russia. 45 of them no longer function as a “foreign agent”, 56 voluntarily dissolved, 16 were liquidated through court, 8 were excluded from the Unified Register of Legal Entities, and 75 remain in the register. Among the organizations in the register, 15 are engaged in human rights protection, 14 work in civic outreach, 8 work in combating HIV, 7 provide support for the media, and 7 assist people in need.

In 2017, the term “foreign agent media” was introduced in the legislation. From the total list of 51 such agents, 38 organizations were added to this register in 2021- 2022. But this was not enough. In 2020, a new category “foreign agent individuals” was added. A “foreign agent individual” can be additionally recognized as a mass media outlet, which entails the obligation for them to register a respective legal entity. The overall number of “foreign agent media individuals” appearing in 2020 was 132 individuals. 20 of them are the coordinators and members of the council of the election observation organization “Golos” and 5 are the employees (including attorneys) of the human rights watchdog “Team 29”. 22 individuals were declared foreign agents with no attribution to mass media. These included the journalist Dmitry Gordon, a Ukrainian citizen. Every Friday, the Russian Ministry of Justice declares new members of, indeed, what is now the prominent community of Russian foreign agents.

It should be noted though that the foreign agent status in Russia is openly discriminatory. It makes those with this status live and work under completely different rules compared to other individuals and legal entities. For instance, they have to provide a great deal of additional reporting and are banned from access to public office and teaching minors. They must mark all their publications (including on social networks) with a special tag, and information about their foreign agent attribution must be printed in all election materials.

Undesirable organizations and unfriendly countries.

 

In 2015, a new term “undesirable organizations” was introduced in the Russian legislation. An undesirable organization (a more precise definition is “an organization whose activities are recognized as undesirable”, which is a foreign or international non-governmental organization the activities of which may threaten the foundations of Russia’s constitutional order, the country’s defence capacity or state security). Such organizations are banned from operating in the Russian Federation, with administrative and criminal measures applied if this ban is breached. Since 2017, undesirable organizations have been banned from establishing subsidiary legal entities in the Russian Federation. In the same year, blocking their websites was legally permitted.

The status of an undesirable organization is established extrajudicially by an arbitrary decision of the Prosecutor General’s Office in coordination with the Ministry of Foreign Affairs of Russia. The list of undesirable organizations is maintained by the Ministry of Justice. So far, none of the undesirable organizations are able to challenge their inclusion on this list. The 55 organizations recognized as undesirable in Russia include the largest international democracy support foundations, educational and research centres. The analysis of the list shows that most of the organizations recognized as undesirable organizations in Russia are large donors.

On July 24, 2022, the Russian Government in its resolution approved a list of states and territories that are unfriendly towards Russia, which includes 49 states (including all 28 countries of the European Union). Russian citizens are banned from working under labour and civil law contracts in the diplomatic and consular missions of these countries.

Like the status of foreign agents, the status of undesirable organizations and unfriendly countries is openly discriminatory, established through an improper legal procedure, and the criteria for the inclusion of organizations or countries in these categories are legally vague and politically oriented. Cooperation with undesirable organizations leads to criminal action.

Repression.

 

In recent years and more so since the start of the war, repression of political activists (Alexei Navalny, Vladimir Kara-Murza), public figures (Vyacheslav Yegorov, Yevgeny Roizman, Leonid Gozman) and the most active municipal deputies (Alexei Gorinov, Ilya Yashin, Ketevan Kharaidze, Elena Kotenochkina, Ilya Azar, Lusya Shtein) have been reinforced.

Alexei Navalny was transferred from an ordinary regime penal colony to a strict regime colony. He has been placed in a punishment cell four times within one month. His lawyers have been denied attorney-client privileges.

Municipal deputy Alexei Gorinov was sentenced to 7 years in prison for publicly questioning at a Council meeting whether it was ethical to hold children’s drawing contests when children die every day in war. Ilya Yashin and Vladimir Kara-Murza are in pre-trial detention; Evgeny Roizman and Ketevan Kharaidze are under house arrest. Leonid Gozman is in pre-trial detention. Gozman sent the Novaya Gazeta-Europe reporter this message via his lawyer: “I don’t understand what they want from me. Their hate of me (they’ve been hating me for a long time) is incomprehensible. I do not take part in elections directly or indirectly, I do not organize anything, I am not urging anyone to do anything – I can’t stand in their way anyhow. I just say what I think. But it is no longer only words, it seems that having thoughts has become a crime. In my arrest brief – here comes a hilarious thing indeed – they say that I am accused of, you see, an ironic attitude to the law, which forbids identifying Stalin with Hitler. Well, this is not the only law I am ironic about!”⁷

In the last six months, 3,807 Russian people have been charged with administrative cases for “discrediting” the Russian army, and 224 have faced criminal charges for “fakes” about the war.⁸

At the same time, lawyers are facing pressure and persecution.

 

For instance, this is the case with Ivan Pavlov, Valeria Vektoshkina, Anastasia Burakova, Mikhail Benyash and others. On September 9, 2018, in Krasnodar, law-enforcement officers snatched and forced the lawyer Mikhail Benyash into an unmarked car. The police took his phone, choked and beat him up, saying in court that he allegedly had been biting them and “beating himself against the car” during the detention. As a result, a criminal case was opened against the lawyer for an assault causing minor injuries to the police officers. On the day of his detention, Benyash was going to provide legal assistance to those detained during a mass protest in Krasnodar. Mikhail Benyash’s story is just one of the 50 episodes of lawyers’ rights violations described in the study “Legal Profession under Attack: Violence, Harassment and Internal Conflicts.”⁹ “Defenders are interrogated, searched, pushed, kicked, handcuffed, strangled and beaten, and sometimes also accused of assaulting law enforcement officers”, the report authors state. Even during court meetings, lawyers are not always allowed to express their position or are even removed from the room. The most disturbing trend is the “increasingly abusive treatment” of lawyers by law enforcement officials. In the twenty years of Vladimir Putin’s rule in Russia, more than 300 lawyers have been killed. And these were not domestic crimes.

Now, what can Europe do when Russian citizens opposing the war are left alone with a repressive dictatorial regime without international protection or in exile?

 

Since the protection of human rights is no longer an internal affair of states and is becoming a universal responsibility, the first and most important thing to do is to collect and record as much evidence of the human rights violations as possible and inform international organizations accordingly. Perpetrators must be held accountable for these violations no matter when this becomes possible.

It is necessary to support and cooperate with Russian human rights organizations and mass media, which have relocated from Russia since the beginning of the war. It is also particularly important to save Russia’s research and education talent located outside the country today. Understanding the emotional component of the Europeans’ attitude to the Russian people as a whole, it should be understood that the hostilities will eventually end, the political regime will change, and the huge neighbouring country will still be there. What this neighbour will be like depends on all of us. That’s why today it’s necessary to protect all those who understand how to improve the situation and how to modernize the regime. According to various estimates, since the war began, roughly 1 to 3 million Russian citizens have fled the country. The risks for those who left are quite significant. Many countries, especially those bordering on Russia, issue humanitarian visas for Russian people without a right to work. Banks will not open accounts. As a result, people are left without livelihoods, and their children cannot study. All this requires a careful and thorough approach, as well as extensive organization under overly complex conditions. All these efforts will certainly pay off in the future.

References

[1] Article 2 paragraph 1 Part II of the 1966 International Covenant on Economic, Social and Cultural Rights states that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.
[2] The 1949 Geneva Conventions: “For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field”, “For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea”, the Convention Relative to the Treatment of Prisoners of War, the Convention Relative to the Protection of Civilian Persons in Time of War, and the Protocols of these conventions of 1977 and 2005.
[3] https://www.newsru.com/russia/28dec2007/last_song.html
[4] https://www.svoboda.org/a/na-konstantina-yankauskasa-sostavili-protokol-o-diskredi-tatsii-armii/32000757.html
[5] Learn more: Blocking of Internet Resources as a Political Censorship Tool. An OVD-Info
report. // https://reports.ovdinfo.org/blokirovki-internet-resursov-kak-instrument-polit-icheskoy-cenzury#1
[6] https://www.consultant.ru/law/hotdocs/46589.html/ © Consultant Plus, 1992-2022
[7] https://novaya.media/articles/2022/09/09/esli-otpustiat-posle-15-sutok-predpochtu-otezd-smerti?fbclid=IwAR3LLkDdWlz3ziRgoNwzeYiCkq2SRScyz0927GXldnNFw7KLy6u-osPJxWsc
[8] https://www.currenttime.tv/a/rossiyanina-stali-figurantami-ugolovnyh-antivoennyh-del/32002758.html
[9] https://legal-dialogue.org/ru/realities-of-russian-legal-profession-violence-harassment-and-internal-conflicts