BEARR Trust Annual Lecture 2016
The BEARR Trust 25th Anniversary Lecture – 7 June 2016
“25 years on: the Rule of Law in Russia and the republics”
Speaker: Professor Bill Bowring
The BEARR Trust marked its 25th Anniversary by looking at key developments in our region over that period, and prospects for the future. The Annual Lecture, kindly hosted once again by the European Bank for Reconstruction and Development (EBRD), One Exchange Square, London EC2A 2JN, was held on 7 June 2016.
Professor Bowring introduced his talk by giving a resume of his own work in the Soviet Union and subsequently Russia. First visiting in 1983, while Andropov was in power, after the collapse of the Communist system and of the Soviet Union, from 1997 to 2004 he was a contracted advisor to the British Government’s Department for International Development on legal reform and human rights in Russia, with particular emphasis on reform of the judiciary and penal law, and the role of NGOs. Later he worked for the EU’s TACIS programme on several projects, in Samara and Penza on social protection for vulnerable groups, and in Kemerovo for the elderly. Jointly with Memorial he founded the European Human Rights Advocacy Centre in 2003. In November 2015 he took part in the 3rd All-Russian Civic Forum in Moscow, in which 1200 civil society representatives from all parts of Russia participated. One workshop focussed on how Russian NGOs can survive the 2012 Foreign Agents Law, on which many articles can be found on the BEARR website and in its monthly Bulletin. These are supplied by BEARR’s partners in Russia, ASI (Agency for Social Information). At the end of 2015 George Ivanushkin of ASI, and the author of many articles in the BEARR Bulletin, wrote a long article, published on their website, of the attacks on Russian NGOs in each month. He described what was occurring as the “slow evisceration of Russia’s civil society” starting from 2012.
Professor Bowring analysed the role and import of the Foreign Agents Law (FAL). Any NGO which engages in ‘political activity’ and receives or is even associated with foreign funding is obliged by the law to register as a foreign agent, a term which simply means a spy. Such NGOs are obliged to publish this fact on everything they publish. So far 130 NGOs have been placed on the register; 30 have been removed, of which twelve ceased to be a foreign agent and the other 18 have been liquidated. Apparently some of those registered did not receive foreign funding but had a member who is alleged to have done so at some stage. About 20 NGOs have ceased to function, refusing to register as foreign agents. These include the Committee against Torture and the St Petersburg Memorial Anti-Discrimination Center.
On 2 June 2016 a further amendment was made to the FAL, defining political activity. Previously the notion of ‘political activity’ was defined as the organising and holding of political actions, and the influencing of public opinion “with the aim to influence the adoption, by government bodies, of decisions seeking to change the policies carried out by them”. The newly adopted definition goes into more detail, further specifying the forms which political activities can take and the spheres of action recognised as political. ‘Political activity’ can take the form of an event such as a gathering, meeting, or rally; participation in elections, polls and referendums, including the monitoring of these events. In addition, the notion encompasses the distribution of information containing assessments of authorities of any level and their policies, particularly if such assessments are made in order to change existing laws. This extends to public addresses and open letters to various officials.
At the same time the Russian government is providing substantial funding to SONGOs (Socially Oriented NGOs). NGO activities in the social sector, among others, are supposed to be exempt from the “political activity” legislation, but environmental groups and some others may well be caught by this broad definition, if they, for example, hold a meeting.
Is this compatible with the rule of law? Definitely not, according to Professor Bowring. He recalled travelling to Russia in the 1990s with the late Tom Bingham (whose memory he reveres), who as Baron Bingham of Cornhill served as Master of the Rolls, Lord Chief Justice and as Senior Law Lord, and was the author of the definitive work on the rule of law, titled “The Rule of Law”. Bingham considered that the rule of law has several aspects in addition to administration according to law (which Russia most certainly has), one of them a democratic mandate, and another the administration of the law by independent and impartial courts. With regard to the first of these, it is notable that Golos, the NGO which did so much to organise monitoring of the 2012 elections in Russia, now faces prosecution or closure. A new Constitutional Court ruling that decisions of the European Court of Human Rights need not be implemented (following the UK’s bad example) is another development that gives cause for concern. Similar laws are being enacted or discussed in other countries of the region.
Some commentators think these are based on a tendency to authoritarianism, others that they derive from a Byzantine history or the legacy of the Golden Horde, which ruled Russia for more than 200 years. Professor Bowring thinks there is another explanation. Both Britain and Russia were imperial powers and their histories are closely linked, not least in the field of law. Scotland played a major part in the development of law in Russia. The University of Moscow was founded in 1755. At first law was taught in Latin and German, by German professors. Semeon Desnitsky, who came from a humble background, was sent to Glasgow from 1761-7, was awarded a Master of Arts there and in 1767 a doctorate in Civil and Church Law. When he returned to Moscow the University refused to allow him to teach, until Catherine the Great intervened, and also ensured that he be allowed to teach Roman law in Russian, rather than Latin as had been the practice. Desnitsky was appointed to Catherine’s Legislative Commission, and wrote a proposal for establishing legislative, judicial and executive power in the Russian Empire, arguing for the creation of a constitutional monarchy. He also advocated the abolition of serfdom and trial by jury. The trauma of defeat in the Crimean War finally set the conditions for adoption of his policies by Alexander II in 1861 and 1864 respectively. An independent Bar was also established, and remained, uniquely, an independent and non-Party profession during Soviet times. It has remained independent to this day, and despite the existence of some notorious judges, there are some very able lawyers, especially from the new generations, in Russia to this day.
In 1993 jury trial was reintroduced in Russia, after consideration of the British model, and exists currently all over Russia, including in Chechnya. In 1998 Russia ratified the European Convention on Human Rights. These reforms and many others following accession to the Council of Europe in 1996, amounted to a restoration of the 19th century reforms, not at all an ‘alien transplant’. From 2000 until 2003, a crucial year in the history of law in Russia, with the arrest of Khodorkovsky and the expropriation of Yukos, Putin cited the great 19th century reforming judge A. F. Koni, and referred to the ‘dictatorship of law’. Koni (1844-1927) is famous for presiding over the trial of the revolutionary Vera Zasulich in 1878. She was charged with the attempted murder of the Governor of St Petersburg, General Trepov, which she had indeed attempted to do. When asked by the Ministry of Justice whether he would do his duty by the State, he replied that he would do his duty by the Law. The jury acquitted Zasulich, a ‘perverse acquittal’, and no reprisals were taken against Koni or the jury.
There have been serious legal reforms since 1991, and even the recent Constitutional Court judgment on the “impossibility” of complying with the European Court of Human Rights on voting rights for prisoners, shows that the Court is trying very hard to avoid a collision (unlike the UK, which is defying the Strasbourg Court on the same issue).
This is another area where there are analogies with the UK. In Professor Bowring’s opinion, both countries are still suffering from post-imperial psychosis, with Britain considering leaving the EU, and Russia wondering what it is really for.
The rule of law in Russia is a battle, with some very good people fighting in it. The regime managed the self-destruction of the opposition and is now destroying civil society. But Professor Bowring remains a guarded optimist.
In the Q&A session, Professor Bowring pondered on the future of the current regimes in the countries of the region. He excluded Ukraine and the Baltic States from his negative remarks on most of the others. Belarus, he thought, is more complicated than it seems, while the countries of the South Caucasus, even Azerbaijan, have some very good human rights lawyers. Most of the dictators are getting older, and even where the record is bad, such as in Uzbekistan, he has been involved in some good work with the UN and the British Embassy, on prevention of torture. In Kyrgyzstan, where he has also recently worked with the British Embassy, a draft Foreign Agents law has not been passed.
In Russia he saw a scenario of clan rivalry rather than a strong dictator. The annexation of Crimea was illegal. Russia justifies it on the grounds of self-determination, which is highly risky, given that parts of the Federation might also decide to self-determine. Recently, Putin blamed Lenin for the break-up first of the Russian Empire, and then the USSR in 1991, through his advocacy of the right of nations to self-determination. In answer to a question on the death penalty, Professor Bowring pointed out that President Yeltsin introduced a moratorium pending the establishment of jury trial throughout Russia, which has now been completed. It then appeared that there was a real danger that the death penalty would be restored, but the Constitutional Court found a very clever way out. The crime of libel has been reintroduced. Progress in rule of law was positive up to 2003, but has mainly been backwards since then.
After the lecture there was a reception, at which Professor Bowring’s book, Law, Rights and Ideology in Russia (Routledge, 2013) was on sale.
Professor Bill Bowring
Bill Bowring teaches human rights and international law at Birkbeck College, University of London. His first degree was in Philosophy, from the University of Kent. He has been at Birkbeck since 2006. He previously taught at the University of East London, Essex University and London Metropolitan University. He is a Fellow of the Human Rights Centre, Essex University, and a visiting professor at Oxford University, Université de Paris X, Nanterre, and Northampton University.
He was called to the Bar in 1974, and practises from Field Court Chambers, Gray’s Inn. As a practising barrister, he has represented applicants before the European Court of Human Rights in many cases since 1992, especially against Turkey and Russia. Bill has over 100 publications on topics of international law, human rights, minority rights, Russian law and philosophy. His latest book is Law, Rights and Ideology in Russia: Landmarks in the Destiny of a Great Power (Routledge 2013).
He is the founder in 2003 and Chair of the European Human Rights Advocacy Centre (EHRAC); a Trustee of the Redress Trust (working for reparation for torture survivors) since 1992; a founder and Executive Committee member of the Bar Human Rights Committee; a Trustee of Lawyers for Palestinian Human Rights; International Secretary of the Haldane Society of Socialist Lawyers; and a founder in 1993 and President of the European Lawyers for Democracy and Human Rights (ELDH), with members in 18 European countries.