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21 September 2016

“Human rights” at the behest of the regime

How Russia’s Commissioner for Human Rights helps bolster the Kremlin’s repressive regime

Major-General of the Ministry of the Interior ,Tatyana Moskalkova, was installed as Russia’s Commissioner for Human Rights in the spring of this year. This shocked the human rights fraternity and prompted criticism. However, only a few months later – following a meeting in early June – human rights activists have changed their minds, having identified “potential which was previously lacking” in terms of their relations with the human rights ombudsman. The participants’ enthusiasm was prompted by her willingness to listen to them. What should we make of this? Should this be treated as the first step towards constructive cooperation? Is this a conversation which is to bring about positive results in the area of the implementation of human rights? Or perhaps it is to be understood as a political ploy aptly described by Yekaterina Shulman as “removing the goat”?

First, a former police officer who voted for the “Dima Yakovlev Law” as well as other unlawful initiatives is appointed ombudsman. Next, the newly appointed commissioner equally unexpectedly offers an olive branch to all human rights defenders including disgraced “foreign agents” allowing them the opportunity to speak which, contrary to their initial, pessimistic expectations, is seen as a giant leap forward. However, by listening carefully to what the commissioner says, and the way in which she says it, one comes to the realization that it is too early for optimism.

Language has become one of the key features of contemporary politics. Words matter since not only do they reflect reality, but they also determine it, affecting public perception. A discipline of discursive institutionalism has even emerged in political science which sees political institutions as an anthology of discourse practices. And from this point of view, public appearances made by the new ombudsman are of great interest, since not only do they shed light on Moskalkova’s personal views, but also on the effects resulting from the regime’s policy in the dimension of human rights.

The appointment of a police Major-General as Russia’s Commissioner for Human Rights has become a significant discursive event in itself, reflecting the qualitative changes of this very institution and the concept of human rights as reproduced in public discourse. Putin’s regime has not given up on human rights as an institution altogether since this would undermine its legitimacy which is based, as the president has repeatedly stated, on the rule of the people. A new frame of representation of this concept has been created instead, altering its essence. In contrast to the liberal approach, in which human rights constitutes a weapon with which civil society arms itself to protect citizens from the arbitrariness of the state, the framework of the “alternative” concept of human rights of Putin’s regime, the state is the main guardian of human rights. Law enforcement authorities are accordingly portrayed as bodies which safeguard human rights (a theme which has also often resounded in Putin’s speeches), whereas human rights activists are seen as “peculiar individuals.” According to this scheme, the appointment of a police Major-General as Commissioner for Human Rights is entirely consistent with the institutionalization of the presented concept.

The political consequences of such a reframing of the liberal paradigm of human rights are quite real. A certain equation becomes instilled in public consciousness: since the state is the main guardian, it cannot be considered a potential violator of human rights, and therefore no demands or claims can be exacted against it. Consequently, high-ranking authorities and officials who represent the state are excluded from the list of potentially accountable entities. The activity of the ombudsman is therefore limited to highlighting the errors of lower-ranking officials, which means that the system is unlikely to be subjected to any changes. On the one hand, this reinforces the state’s image as “the guardian” and also provides opportunities for adoption of the language of “the enemy” at any given opportunity while placing emphasis on human rights violations which occur in the West. On the other hand, it poses little threat to the incumbent government and, at the same time, even contributes towards its preservation.

The institution of the ombudsman is deprived of its independence and thereby becomes an extension of the president’s function within such a structure, as manifested in the discourse of the new commissioner with alarming conspicuousness. If truth be told, each and every phrase uttered by the commissioner could easily have been copied verbatim from the presidential song book. Take, for example, Moskalkova’s early speeches which she made shortly after her appointment. The priority issues she identified included “the most important problems related to labor relations, the non-payment of wages, the domain of criminal procedural legislation, the penal system, migration, housing and communal services” as well as the protection of the rights of Russian citizens abroad.

It is clear that the commissioner has so far only tackled issues “permitted” by the president. Problems related to the area of corrections were raised by the president in March 2016 during a meeting of the board of the Prosecutor General’s Office. Social problems related to housing and communal services and the non-payment of wages are topics which traditionally feature in annual presidential addresses to the Federal Assembly of the Russian Federation. And reference to the theme of values and the protection of the rights of Russian citizens abroad are known to feature prominently in Putin’s rhetoric. Moreover, the ombudsman often employs figures of speech typical of the official discourse of power, further distorting the concept of human rights.

Take, for example, Moskalkova’s statement in which she promised to resolve “problems in the domain of labor relations”, in other words to protect labor rights. Her reasons for mentioning this category of rights in the first place is abundantly clear: the “protection of labor rights” has a very familiar ring to it for the population who are used to Soviet rhetoric and hence for them it may even have a nostalgia-inducing effect. However, despite the indisputable importance of labor rights and the necessity to protect them, they do not belong to the category of “human rights” as such, since they are put in place to regulate relations between natural persons; between employers and employees and not citizens and the state, therefore, they do not fall within the scope of the commissioner’s competences. The same goes for problems related to housing and communal services which are matters dealt with under civil law. Of course, the commissioner cannot ignore the multitude of complaints received from citizens concerning these issues, however, the problem the commissioner is faced with in this case is the poor performance of courts and the prosecutor’s office, legally entrusted with the task of resolving such conflicts.

But the commissioner refrains from using terms such as “unsatisfactory performance of courts or the prosecutor’s office” or “corruption of the judiciary” for fear of displeasing the president etc. She opts for mundanely abstract terms instead (“problems in the domain of labor relations” or housing and communal services) and thus excludes both the state and state authorities from the range of accountable entities since the highest-ranking authorities and labor relations share no connection in the eyes of the general public and it is employers and natural persons who are always deemed to be responsible whenever infringements are detected.

Moreover, issues of labor relations, housing and communal services serve as a convenient means by which discourse can be directed towards socio-economic rights. Problems connected with respect for civil and political rights are hushed up which leads to the condensation of human rights into mere socio-economic guarantees. This is a notorious, Soviet ploy and it is therefore no coincidence that the discourse of the newly appointed commissioner features the mantra of socialist law on the inseparability of socio-economic and civil-and-political rights. “It is inappropriate to rank, according to priority, less and more important rights” – the ombudsman says. This is how the most acute and problematic themes of the government’s accountability to citizens are purged from discourse and replaced by quasi-human rights themes of a private nature.

Another component also regarded as a priority by the newly appointed commissioner is “problems in the domain of criminal procedural legislation and penitentiary system”. Again, at first glance, everything appears fine; violation of human rights during investigation or the enforcement of sentences in places of detention is one of the most serious problems of the Russian regime and one which the commissioner should undoubtedly address. But what is questionable is the way it is presented. The ombudsman makes use of exclusively abstract phrases in the passive voice during her speeches. Thus, it is not made clear who exactly is responsible for these “problems” almost as if the rights violations occurred of their own volition – driven by an impersonal, elemental force operating wholly independently of the incumbent government.

Besides, the semantics of the commissioner is very peculiar; she often confuses notions and displays a lack of professionalism when it comes to legalese. For example, when commenting on the issue of remanding detainees in pre-trial detention facilities in her interview for the Echo of Moscow, Moskalkova repeatedly stated that “the rights of perpetrators” also have to be defended. It is noteworthy that the notion of “the rights of perpetrators” has no place in the vernacular of human rights activists since the latter rather defend “human rights in places of detention”. Besides, the wording is incorrect from a legal standpoint. By implication, Moskalkova effectively put an end to presumption of innocence when she referred to the rights of those in pre-trial detention facilities who are yet to be convicted or acquitted, as “the rights of perpetrators”.

The consequences of such rhetorical nomenclature are not limited to semantics nor is the term “foreign agent” – a label which has been attributed to the majority of human rights organizations. The word perpetrator only has negative connotations in the public consciousness and it emphasizes the amorality of the subject of protection and their hostility towards society. Therefore, by reiterating the phrase “rights of perpetrators”, the commissioner expands this connotation to encompass the word “rights” including human rights. The use of such terminology devalues both the notion of “rights” and the status of the institution of the human rights commissioner in the eyes of the Russian audience: an institution which protects the rights of perpetrators would hardly enjoy popularity against the backdrop of the deteriorating socio-economic situation in the country.

In one of her speeches, the newly appointed commissioner once mentioned that one should speak “one’s own language” – the language of the authorities – when speaking to them. And, evidently, she has mastered this language. But will this make the ombudsman institution effective? According to George Lakoff, a prominent researcher of political thinking, to speak the language of one’s opponent within the frame they themselves establish, is to fail prematurely, since these tactics only lead to the reproduction and amplification of an opponent’s discourse. The task of the ombudsman is not to adapt to the power elite or select wording that it finds pleasing, its task is rather to create such a discourse which forces the authorities to hear their citizens and take their interests into account within the scope of this discourse. International experience (e.g. Peru) has shown that an ombudsman can become an influential figure, capable of defending human rights, even under an authoritarian regime. Unfortunately, the newly elected Russian Commissioner for Human Rights seems to represent the interests of the power elite as opposed to those of Russia’s citizens. Hence, she is turning the institution of the ombudsman not only into a “democratic façade” but also a prism which distorts the interpretation of relations between the state and the citizen through its communications with society, further bolstering the repressive regime.  

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