The materials of the report are providing a possibility of wider generalization and conclusions relating to not only the problem of Meskheti Turks and not only Krasnodarski Krai. Some general conclusions of such kind shall be expressed below, but now we are dealing with a necessity of interpreting all the collected materials and answer an inevitable question: what is the matter with Meskheti Turks in Krasnodarski Krai?

Is the problem only of an obvious impotency of migration services and lack of some sensible migration policy?

Or we can and must speak of national orientation of such impotency and so — of DISCRIMINATION of Meskheti Turks by nationality?

The freedom from discrimination is one of the fundamental human rights, and as such it is proclaimed in the Universal Declaration of Human Rights (Articles 2 and 7) and fixed in the International Pact of Civil and Political Rights (Articles 2, 3, 24, 26) and some special Conventions.

Unfortunately, neither in theory, nor in legislation, nor in enforcement practice the problem of protection against discrimination is not mastered in Russia. Article 19 of the Constitution of the Russian Federation contains a norm of prohibiting discrimination that is diversely varied in sectorial legislation, but it does not help in qualifying any specific actions.

There is no definition of discrimination in Russian law, so we need to use existing international agreements prohibiting discrimination and applicable directly in accordance with Article 15 of the Constitution.

Article 1 of the International Convention on Liquidation of All Forms of Racial Discrimination (valid from January 4, 1969) participated by Russia contains general definition of racial discrimination.

In accordance with the Convention, racial discrimination is «any differentiation, exclusion, restriction or preference based on the signs of race, color of skin, kind, national or ethnic origin aimed at or resulting in any cancellation or derogation of recognition, use or performance on equal basis of human rights and basic freedoms in political, economic, social, cultural or any other fields of social life.»

So, the principal question is worded as follows: is it possible to consider the policy of Krasnodarski Krai’s authorities as discrimination in respect to Meskheti Turks?

The international practice is sourcing from a wide meaning and construction of human rights, including the freedom from discrimination. There is no need in searching for normative acts calling directly a certain group of people as an object of special restrictions or preferences based on national features. Such legislative acts would be considered as directly racialist qualified as such without any problems. The discrimination is a kind of violation of human rights that is very difficult to be proved as it is often performed not in direct, but in concealed, indirect forms.

The fact of discrimination should be recognized if the rights of individuals of a national group are infringed actually, if their capabilities of actual use of civil, political and other rights on equal bases with others are restricted. And such infringement, according to the Convention, may be either an aim or a result of the differences that are pursued. Specific mechanism and method are not essential in general terms, if they lead to discrimination. But let us consider the problem more thoroughly, as the entire Krasnodar situation has certain pseudo-legal basis to which the Krai’s authorities appeal.

Particularly, a problem of special interest is the one of citizenship of Meskheti Turks living in Krasnodarski Krai.

The Convention on Liquidation of All Forms of Racial Discrimination contains a special clause concerning its inapplicability to the differences by member states in respect to citizens and non-citizens. A «multi-layer» system of citizenship in former USSR and its member republics and the system of permitting registration at the place of permanent residence (propiska) were fraught with possible collisions, but the situation of Meskheti Turks is clear enough, and the clause of the Convention in our case may be ignored. Resolutions of the Governments of the USSR (# 503) and the RSFSR (#220) were aimed at providing assistance in adaptation of Meskheti Turks in the middle strip of Russia, and so the problems of citizenship would be solved automatically. But the two Resolutions did not contain any compulsory instructions concerning settlement of Meskheti Turks limited by the said regions of the RSFSR.

So the majority of them had not other places of residence except the territory of the RSFSR as of the date of entering into effect of the Act of the Russian Federation «On citizenship», and, consequently, they should be considered as its citizens.

It should be mentioned that Meskheti Turks are already recognized as citizens of Russia as they are not treated as foreigners and the regime of their stay at the territory of Russia is quite different.

The specific of «Krasnodar case» is that the institution of registration of residence performed in a permitting manner is used as a local version of national policy.

The right to free choice of the place of residence was not fixed neither in the Constitution of the USSR of the year 1977, nor in the Constitution of the RSFSR of 1978, although such right was provided for by the International Pact of Civil and Political Rights participated by the USSR. To add the above mentioned, let us cite the wording of this right according to Part 1, Article 12 of the Pact: «Each person staying legally at the territory of a state (italicized by me — S.S.) shall enjoy the right of free movement and the freedom of choosing a place of residence within that territory.» The Pact is not linking this right with availability of citizenship; as concerns the legality of stay of Meskheti Turks at the territory of Russia, it is not doubted to the effect of availability of special governmental decisions, irrespective of construction of the problem of their citizenship.

The problem of legality of the institutions of registration of permanent residence was considered in autumn 1990 by the Committee of Constitutional Supervision of the USSR. The conclusion of the Committee dated October 29, 1990 recognized that the «registration function of the propiska institution is not contradicting to laws of the USSR and generally recognized international standards, but its permitting manner is preventing citizens from implementation of their basic rights — the freedom of movement, the rights to labor and education.» Unfortunately, the decision taken by the Committee has not changed the existing practice.

The rights to freedom of movement and choice of place of residence were fixed in Russian legislation for the first time in the Declaration of rights and freedoms of man and citizen adopted by the Supreme Soviet of the RSFSR on November 22, 1991. In 1992 the text of the Declaration was included into the Constitution of the RSFSR as its Chapter II, and so the right to freedom of movement and choice of place of residence became a constitutional right (Article 42 of the Constitution). Any restrictions of the right were only permitted based on law. At the same time, no implementation mechanism was provided, different by-laws restricting citizens’ rights were still used, and the remaining practice became openly anti-constitutional.

Finally, the Act of the Russian Federation was adopted on June 25, 1993 «On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation», that came into effect on October 1, 1993. The Act has replaced the permitting manner by a notifying one and completely determined the bases on which one may be refused from registration, and a list of documents necessary for such registration. So the problem of the right to freedom of movement and choice of place of residence was solved in a legislative manner. The Act was also providing for approval by the Government of the Russian Federation of the rules for registration and striking off the register, but lack of such rules (they were only approved by the Government on July 17, 1995) cannot be considered as a factor suspending effect of the Act itself. So any acts of the members of the Federation regulating the matters of registration may be used to the extent not contradicting to the Act.

The norm of the right to freedom of movement and choice of place of residence was included into the new Constitution of the Russian Federation (Article 27) adopted on December 12, 1993, in a form not requiring any alteration of the Act, and so the problem of ensuring this right to citizens of the Russian Federation and other individuals who stay legally at its territory was solved at the highest level of legislative regulation.

Let us consider a series of arguments used by some people to explain anti-constitutional acts and actions relating to this problem.

The right to freedom of movement and choice of place of residence, as all other rights, may be restricted, according to Item 3 of Article 55 of the Constitution and international agreements, to the extent it is necessary for protection of the foundation of the constitutional order, moral, health, rights and legal interests of other people, ensuring defence of the country and the state security. The anti-migration acts of the Krai’s authorities are motivated by the necessity of protection of local population, complexity of criminal situation, overpopulation of the Krai, etc. Essentially, this series of arguments has a right to exist and may play certain role in determination of the migration policy, but only provided that the restrictions that are introduced are really necessary for achievement of legal goals, are proportional and not restricting anybody’s rights by national features, that are not having a discriminating nature. But the materials presented in the report are evidencing that the migration policy pursued by the Krai’s authorities cannot be justified neither by over-population, nor by higher level of criminality on the part of the migrants.

The national orientation of the «registration policy» pursued by the Krai’s authorities is not recognized in the text of these normative acts themselves, but it may be proved based on statistical data, and this fact is not denied by the administration’s officials.

So, to make the problem of discrimination correct we should reveal at least two facts: first, use of differences or restrictions based on the principles of nationality, and second, arising from the first, derogation of use and performance on equal basis of basic rights and freedoms.

1. The materials collected by the mission and used in the report make it possible to state that the regulations relating to registration used in Krasnodarski Krai are actually causing the restrictions in the choice of place of residence first covering Meskheti Turks. It is proved in particular by the data relating to Krymsk district concerning the ratio between the persons that applied for registration and those who was registered among the people of different nationalities. In general, this ratio is approximately the same for Azerbaijanians, Armenians, Belorussians, Greeks, Yezids, Russians, and other nationalities. A difference having a peak nature is only demonstrated by Meskheti Turks: from 8,458 of applicants only 9 persons have been registered. The statistical data relating to registration are directly confirming statements demanding restriction of registration for «non-Slavic citizens» that may be heard in the Krai.

The national orientation of the «registration policy» is also confirmed by the data of Abinsk district.

So the fact of segregation of a group — Meskheti Turks — by national features may be considered as established. Any other interpretations of the statistical data cannot be considered as satisfactory.

2. Lack of registration causes serious restrictions in almost all other basic rights.

The compilers of the report are providing specific data and evidences demonstrating restrictions of property right (execution and so possession of real estate, motor vehicles, etc.), labor, political and other rights for individuals not registered. Preventing from use of basic rights on the bases of equality with other people not motivated by any other considerations, except lack of registration, is obvious.

In this connection the Resolution of the Constitutional Court of the Russian Federation dated April 25, 1995 should be mentioned that stated that any registration or lack of it cannot be used as a basis for limiting or implementation of any rights or freedoms.

The restriction of rights of people who are not registered is not having itself any specific national color, but within the context of Krasnodar situation this restriction acquires a clear national orientation.

So the two components making it possible to state that there is a discrimination of Meskheti Turks by national features and such discrimination is aimed at preventing Meskheti Turks from social adaptation and forcing them from the Krai are available.

The said discrimination is not only having a domestic nature, but it is a conscious policy of the Krai’s authorities demonstrated by actions taken by officers of local administrative bodies.

The Convention on Liquidation of All Forms of Racial Discrimination is providing for taking by member states of a system of measures aimed at fulfillment of their obligations relating to struggle against the discrimination. Such system of measures is including adoption of the respective legislation, prevention and alteration of discriminating practice both at the state and local levels, establishment of effective responsibility for instigation to discrimination, etc.

The unfavorable situation is caused to a considerable extent by lack of special anti-discriminating legislation in the Russian Federation that is available at the most of democratic countries. The final report of the Intercommunal relations project of the Council of Europe emphasizes that such legislation should cover at least the following problems:

1) words, actions, publications containing instigation to racial hatred, violence or discrimination;

2) discriminating conduct (acts or omissions) on the part of state officials when they perform their duties;

3) discrimination of a part of private persons or institutions in the following spheres: dwelling, employment, education and vocational training, provision of goods and services.

Serious gaps in legislation of the Russian Federation are evident.

Unfortunately, at present any effective mechanisms of protection against discrimination and punishment for acts of discrimination are unavailable in the Russian Federation. Particularly, in Krasnodarski Krai the activities of a part of Cossack societies having an aggressive and chauvinistic nature not only are not prevented, but regional authorities are actually conniving at their activities and taking the same attitude.

Article 74 of the Criminal Code of the Russian Federation is providing for a criminal liability for flaring-up of national, race hostility and hatred, but this norm is almost not used. In accordance with the disposition of Article 74, corpus delicti is providing for availability of a direct intention which is extremely difficult to be proved in most cases. So only one person was convicted in 1993 under Article 74 of the Criminal Code of the Russian Federation, and nobody in 1994.

To the effect of the above mentioned there is a basis to state that the Russian Federation is not fulfilling its obligations in full in accordance with the Convention on Liquidation of All Forms of Racial Discrimination.

To look at the problem wider, the «Krasnodar experience» is demonstrating one more serious legal and political problem without solving which it would be impossible for Russia to move further to building of a legal state.

The specifics of federal organization of Russia are setting forth the problem of human rights from the point of view of participation of the members of the Federation in their regulation and protection.

The policy of Krasnodarski Krai’s authorities in respect to Meskheti Turks living in the Krai and the Krai’s normative acts forming such policy are reflecting, perhaps in the most striking form, one of the key problems for Russia in the field of human rights — the rights of an individual in the federal state — and the Russian Federation is just such state.

A tendency to deviating from the constitutional, and so common for the entire state level of guarantees of human rights is clearly seen in legislation and practice of many members of the Federation.

Such tendency is demonstrated not only by Krasnodarski Krai, but also by many other regions and Krais of the Russian Federation, not only in connection with forced migration. The «Krasnodar experience» concerning Meskheti Turks is noteworthy only by its completeness and frankness, but not by its uniqueness. Similar decisions and normative acts hampering social adaptation of refugees and forced migrants are adopted by many regions of Russia, such as Moscow and Moscow region, Rostov region, Stavropol Krai, etc.

Such phenomena may be partially explained by chronic delay of Federal authorities in solving urgent problems, lack of a distinct migration policy, etc., but only partially.

This tendency of lowering the common state standard relating to human rights demonstrated by the members of the Federation, we see clearly not only in the field of migration policy, but in many other spheres.

A legal assessment of the problem consists of two aspects: — within the context of national law (1), — within the context of international obligations and international legal responsibility (2).

1. In question is distribution of authorities between the Federation and the members of the Federation in the field of human rights.

Article 71, Item «в» of the Constitution is ascribing to the authority of the Russian Federation «regulation and protection of human and civil rights and freedoms, regulation and protection of rights of national minorities», while Item «о» of the same Article — also the legislation relating to the most important sectors of law.

Article 72, Item «б» is ascribing to common authority «protection of human and civil rights and freedoms, protection of rights of national minorities.»

Obviously, the normative acts adopted in Krasnodarski Krai and many other regions in no case may be considered as the acts ensuring protection, but regulation of human rights, and the guarantees are lowered here from the state level. So, intervention into the Federal authority is evident.

2. The aspects of international law.

The restrictions of civil rights introduced by legislation of members of the Russian Federation very often are not complying with international standards, including obligations under the agreements participated by Russia.

Let us stress it — Russia’s obligations, not obligations of any members of the Russian Federation.

Article 2 of the International Pact on Civil and Political Rights is binding a state participating in the Pact to ensure the rights recognized by the Pact for all individuals «staying within its territory or under its jurisdiction.» Russia’s jurisdiction in respect to its entire territory is not doubted by anybody yet.

The second aspect of the same problem. Only Russian Federation is a subject of law in full in accordance with international law, and, of course, not the members of the Federation. It is quite obvious that the responsibility in accordance with the obligations taken is also born by the subject of international law. The Federal authorities are bearing principal responsibility for protection of basic human rights and freedoms in Russia.

Perhaps, it should determine the attitude of the Federal authorities in the cases where situations occur similar to Krasnodar events. It is first relating to the President who is, according to the Constitution, the guarantor of human rights and freedoms in the Russian Federation.