Jus$ciability of Economic, Social and Cultural Rights in Russia: Overview of the Most Recent Case Law. Dr Maria Smirnova The University of Manchester

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1 Dr Maria Smirnova The University of Manchester

2 Ra6fica6on of the ICESCR by the Soviet Union in 1973, ac6vely used by courts aaer 1993 (Cons6tu6on), even more aaer 1998 (ECHR), even more aaer 2010 (Supreme Court Plenary Ruling on Applica6on of Interna6onal Norms) UDHR (despite being a declara6on) is cited directly by Russian courts (even more oaen than the ICESCR) Russian Cons6tu6on 1993: Man, his rights and freedoms are the supreme value. The recogni6on, observance and protec6on of the rights and freedoms of man and ci6zen shall be the obliga6on of the State (art 2) Russia is a social welfare state whose policy is aimed at crea6ng condi6ons for a worthy life and a free development of man (art 7) Social security is a cons6tu6onal right: Everyone shall be guaranteed social security at the expense of the State in old age, in case of an illness, disableness, loss of the bread-winner, for upbringing of children and in other cases established by law (art 39)

3 Total number of cases referring to ICESCR (900+) and UDHК (1,700+) Focus: list of issues in concluding observa6ons of the CESCR periodic report 2011.

4 1. Rights of indigenous peoples to use their ancestral lands and natural resources 2. Residence registra$on as a limita$on of social rights 3. Labour rights of people with disabili$es 4. Rights of migrant workers + Pure social security rights (reference to art 22 UDHR and art 9 ICESCR) The right to educa6on very short overview

5 1. Rights of indigenous peoples to use their ancestral lands and natural resources The Commi\ee recommends that: The State party incorporate the right of indigenous peoples to their ancestral lands into the revised Land Code and the new revised draa Law on Territories of Tradi6onal Nature Use, and the right to free access to natural resources on which indigenous communi6es rely for their subsistence into the Forest and Water Codes; Seek the free informed consent of indigenous communi6es and give primary considera6on to their special needs prior to gran6ng licences to private companies for economic ac6vi6es on territories tradi6onally occupied or used by those communi6es

6 1. Rights of indigenous peoples to use their ancestral lands and natural resources Free use of land and natural resources is guaranteed by Federal Law On the Guarantees of Rights of Indigenous Peoples of the Russian Federa6on (1999). Free hun6ng on these lands is guaranteed by Federal Law On Hun6ng (2009) The Higher Arbitra6on Court, 2012: Imposi6on of fees for hun6ng for personal purposes of an indigenous community would be contrary to interna6onal law. However, imposi6on of fees for industrial purposes is not a viola6on.

7 1. Rights of indigenous peoples to use their ancestral lands and natural resources Kemerovo Regional Court, 2012: Use of land is free of tax for indigenous people, however, this benefit is reserved for those who use the land for tradi6onal agriculture and craas, not for commercial use. Kemerovo

8 1. Rights of indigenous peoples to use their ancestral lands and natural resources The obliga6on to seek the free informed consent of indigenous communi$es and give primary considera$on to their special needs prior to gran6ng licences to private companies for economic ac6vi6es on territories tradi6onally occupied or used by those communi6es is imposed on regional bodies the Federal Law On the Guarantees of Rights of Indigenous Peoples of the Russian Federa6on (1999).

9 1. Rights of indigenous peoples to use their ancestral lands and natural resources Supreme Court, 2009: Gran6ng a license for industrial fishing in Kamchatka on the territory belonging an indigenous people without their informed consent violates their statutory rights. Kamchatka

10 2. Residence registra$on as a limita$on of social rights The Commi\ee urges the State party to take effec6ve measures, legisla6ve or otherwise, to ensure in prac6ce that the lack of residence registra6on and other personal iden6ty documents does not hinder the enjoyment of economic, social and cultural rights in accordance with the Covenant. Ar6cle of the Cons6tu6on: The State shall guarantee the equality of rights and freedoms of man and ci6zen, regardless of place of residence.

11 2. Residence registra$on as a limita$on of social rights The Supreme Court: A woman was illegally deprived of her right to be registered as a person in need of permanent housing only because she could not confirm her residence registra6on Lack of confirma6on of permanent residence does not cons6tute a legi6mate grounds for rejec$on of admission to a public school Lack of permanent registra6on cannot jus$fy limita$on of social security rights. In Saint-Petersburg a refugee from Ukraine was denied financial support (maternal capital) guaranteed to Russian ci6zens aaer the birth of each child (she had given birth to her fourth child) only because she could not provide any proof of permanent registra6on in the city. The relevant provision of the city s social security regula6on were held contradic6ng federal legisla6on.

12 3. Labour rights of people with disabili$es The Commi\ee encourages the State party to promote the integra6on of persons with disabili6es into the labour market, including by strengthening the effec6veness of the system of job quotas for them, reintroducing the tax benefits as incen6ves for hiring persons with disabili6es, and establishing an efficient enforcement procedure and remedies Conven6on on the Rights of Persons with Disabili6es ra6fied. - Tax benefits for organisa6ons hiring disabled people were cancelled in 2004., - Quotas are s6ll in place for organisa6ons with more than 100 employees. - Regional quotas 2-4 per cent quotas can be introduced by regional laws (subject to judicial review). - administra$ve liability (a fine EUR) for refusal to admit a disabled person sent to the organisa6on within the established quota. (5.42 CAO). Since 2013 liability for not filling the vacancy.

13 3. Labour rights of people with disabili$es Supreme Court, Judicial review of a Yaku6a Republic Quotas Regula6ons. Held:contradict the federal law no obliga6on to inform the state employability agency on the actual filling of the quota posi6ons. Supreme Court, It is absolutely vital that the responsibility to create quotas includes the responsibility to fill them! Not a limita6ons of freedom of contract but, serve as a prac6cal guarantee.

14 4. Rights of migrant workers Ensure that migrant workers have access to effec$ve appeals against orders of deporta$on and that deten6on and deporta6on of migrant workers are made in full compliance with the human rights obliga6ons of the Russian Federa6on. All deporta6on cases are now made with due considera6on of ECHR Ar6cle 8. The courts tend to cancel deporta6on decisions at the appeal stage for humanitarian reasons if the migrant has a family in Russia. Supreme Court Plenary Ruling No. 40, YY

15 4. Rights of migrant workers

16 + Pure social security rights (reference to art 22 UDHR and art 9 ICESCR) a selec$on of jus$ciable aspects. - Firewood for teachers. school teacher in a remote rural region in Kurgan Oblast received compensa6on for firewood that was delivered in unusable form, the elderly teacher had to pay for chopping it into smaller chunks (Kurgan, 2014). - Pension rights. Recogni6on of a period of work as coun6ng towards early pension of the applicant as an educa6on worker, despite the fact that the relevant name of teaching posi6on is not explicitly men6oned in the List of pedagogical posi6ons en6tled for early pension approved by Russian Governmenton the basis of factual circumstances of the case, the nature of the job, the age of children taught etc, and not only on the literal interpreta6on of the legal regula6ons (Belgorod, 2014). èèè

17 + Pure social security rights (reference to art 22 UDHR and art 9 ICESCR) a selec$on of jus$ciable aspects. - Free sanatorium vouchers for disabled persons. With reference to general principles of interna6onal law and recently ra6fied CRPD the vouchers are granted to all categories of disabled people, not only those listed in the law (Perm, 2014 and 160+ similar cases). - Compensa$ons for work-related injuries. Not only compensa6ons for losses, but also injunc6on to improve working condi6ons viola6ng established requirements (Belgorod, 2014 and 1,500+ similar cases).

18 + The right to educa$on - very short overview All other cases, including language and religious rights in educa6on Expulsion from universi6es (mostly Moscow) Security of pupils (installa6on of fences around schools, police alarms, fire safety etc) Viola6on of the license restric6ons Provision of free textbooks in schools for all pupils Access to pre-school educa6on (lack of spaces in a municipal nursery or funding is not a jus6fica6on)

19 Conclusion 1) Russia ac6vely implements interna6onal law, taking into considera6on the prac6ce of monitoring bodies (CESCR) and the ECtHR (general and individual measures). 2) Regional courts are encouraged by the federal government to apply interna6onal law => uniformity of the legal system is ensured. 3) Use of universally recognised principles of interna6onal law when a domes6c rule does not exist or is not effec6ve usually leads to resolving the case in favour of the applicant. 4) More important than cases cited above - some of the issues included by the Commi\ee never appear in courts or are rarely successful for the applicant (harassment, domes6c violence, ethnic discrimina6on).

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