General evaluation of reforms
The main problem of legal reform in Russia today is the tendency
towards increasing the “gap between the clauses of the Constitution and real relations
being formed in society”. As CE experts point out in their report : "On the basis
of the interviews we held during our mission as well as other sources, in particular press
reports, I have come to the conclusion that so far the Russian Federation cannot be
regarded as a State based upon the rule of law, a conclusion which is further confirmed by
the findings of the other experts as set out in this report.
It emerged as a consistent pattern of Russian reality today that, while
constitutional and legislative texts often provided for quite satisfactory regulations,
the latter were not consistently applied in everyday practice".
In the criminal justice system, the lawmaking process, on the one hand,
and everyday practice, on the other hand, run in entirely different directions: significant
progress made in bringing federal legislation in compliance with international standards
is accompanied by obvious regression in the field of human rights observance in the form
of violations that are widespread and systematic.
For example, the very conditions in pre-trial detention centers,
which worsened in the years since 1992 due to their unbelievable overcrowding, have been
regarded as torture. In addition, during the last three years the government has failed
even to prevent the further deterioration of the situation in pre-trial detention. As a
result, the overcrowding has become national security problem: the system of pre-trial
detention facilities inflicts serious harm to the health of the nation and threatens
public order.
Widening the gap between the civil rights guaranteed by legislation
and those found in real life hampers further democratic changes in Russia, and creates
threatens serious catastrophes for all of society.
Why do the
laws not work?
The contradictory processes in the course of the
reforms have a number of causes. Here we mention only those that are directly related to
the project’s objectives.
1.
The legislative process takes place beyond the real social, economic or
another context. A typical example is the Federal Law “On Detaining People Suspected or
Accused of Committing Crimes” (hereinafter, “FL”), that came in effect in July 1995.
As monitoring shows, the following reasons prevent the implementation
of the law:
- the lack of information among those social groups that are affected by the new law
(prison workers, lawyers, prisoners, their relatives and others) — see below
para 3, Doc. ? 2;
- the lack of resources to provide for the law's implementation — see below para
4.5, 4.6, 5.3, Doc. ? 2;
- the subject charged with the law's implementation has not been defined — see
below para 4.4, Doc. ? 2;
- the law’s provisions are defined arbitrarily; their implementation is not supported by
the proper legal mechanisms — see below para 4.6, 4.7, Doc. ? 2;
- the law does not define the difference between what action is governed directly by it,
and what action requires sub-acts for its implementation — see below 5.1, Doc.?
2;
- the law is outside the field of the object under reform — see below para 4.2,
4.5, 4.6,
Doc. ? 2.
2. Choosing the wrong object for reform
Legal reform in 1991—95 was devoted mainly to legislative changes.
Its authors considered that bringing legislation legislation into compliance with
democratic standards and monitoring implementation sufficed for guaranteeing the reforms'
success. At the same time, reform strategists totally ignored how current management and
functioning methods of the systems targetted for reform influence the process of reforms.
As monitoring shows, this has lead to results that are contrary to the aims pursued by
legislation.
Thus, the Law On the Changes and Amendments to the Correctional Labor
Code of the Russian Federation, adopted by the parliament in 1992, aimed to humanize
prison conditions. However, some legislative innovations, in particular the abolition of
various types of punishments, made it difficult to control the prison population and
created additional problems for prison staff. The latter, comparatively small in number,
had been able to manage huge masses of prisoners only with the help of cruel punishments
and repression. When the situation in correctional institutions grew less and less stable
and it was necessary to improve public security, the administrations of penitentiary
institutions had to use latent methods of keeping prisoners under control and new methods
turned out to be crueler than those abolished in 1992. In addition, latent punishments
made it more difficult to solve conflict situations by legal means, since it is impossible
to appeal them.
This example vividly shows that the system of government, social
organization and state institutions that Russia inherited from the totalitarian regime
has, in turn, developed mechanisms and methods that are unacceptable, from the point of
view of its functioning, to legislative changes. Legal lacunas are being filled with
departmental instructions and normative acts and experimental institutions that are not
regulated by legislation, and latent institutions are being used. Most of the 1992
amendments were neutralized by penitentiary workers who nonetheless spoke out willingly on
the importance of the new law and their commitment to the ideas of democracy and the rule
of law. This was a traditional way of responding to changes, since the new slogan,
"building the rule of law" instead of the old one, "building
communism", did not change the nature of laws, they remained a mere declaration.
Another problem is that currently unlawful methods are justified by
more important goals. If prison staffs had obeyed the adopted law, the consequences
for society would have been more horrifying than if they had not. It would have resulted
in the loss of control over prisoners, poor functioning of the penal institutions and a
number of excesses (escapes, riots, growing crime rate in penitentiary institutions etc.).
Thus, on one hand, the prison administration system is resistant to
legislative changes alien to it, and, on the other hand, the changes themselves are
utterly unrealistic, and encourage officials to preserve former, unlawful methods of
operating.
3.
There are no mechanisms to improve legislation and fill the gap between
new standards and their implementation. No monitoring over application of the new laws was
conducted to find out how realistic they were.
Such monitoring would have yielded not only an estimate of the
effectiveness of legislative changes, but also an understanding of the reasons why new
norms did not work, such as:
- lack of information, resources and legal mechanisms necessary for proper implementation
(see para. 2.1);
- a refusal to use existing management techniques; a discrepancy between bureaucratic and
strategic state goals;
- a discrepancy between norms of codified and common law.
Additional
MCPR materials
Additional MCPR materials
offer other explanations for the inconsistency in legal reform, such as the bureaucratic
character of reform, excessively centralized administration. We also suggest a new
approach to change the nature of the reform process, using NGOs, independent experts and
by establishing new, independent bodies to conduct reform, social and legal mechanisms
stimulating a shift of management systems towards legality.
The MCPR's "Towards the Rule of Law"project
could, in fact, implement these proposals. It should be pointed out that legal reform
monitoring that has been conducted by NGOs, in particular by the MCPR, is unlikely to be considered sufficient or effective,
mostly because Russian NGOs lack the necessary resources, both human and financial, thus
limiting the scope of their work.
|
General
evaluation of reforms