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Each person who is legally present on the territory of the Russian Federation has the right freely to travel and choose his place of stay and residence. That is what the Principal Law of the Russian Federation, the Constitution, says (Article 27, Section 1).
This freedom (that is to say, this right) belongs to each citizen of Russia. It belongs to him from birth onward and is inalienable (Article 17, Section 3 of the Constitution).
One should bear in mind, however, that an individual's right or freedom must not violate the rights and freedoms of others. This is also provided for in the Constitution (Article 17, Section 3). There is some common sense in that. An individual's right must have certain limits, as its unlimited use may result in the violation of another individual's rights. Suppose "somebody" were to enter habitable premises belonging to someone else, and without the owner's consent, either. Suppose, then, that this "somebody" were to try to justify his intrusion by saying he enjoys the freedom of movement. An awkward situation, eh? Because, in doing so, the intruder would have violated a right of the owner of the premises - his right to the inviolability of dwellings. By the way, that's a constitutional right, exactly like the freedom of movement.
To prevent such things from happening, one must define limits for the exercise of rights and freedoms. In other words, boundaries must be set up beyond which one cannot walk. And it is here that the principal question arises. As a matter of fact - by whom, how and within what limits can these boundaries be defined?
There is only one answer to that question. By the law. The law of the Russian Federation. Federal law, that is. In which connection, I think, a little excursion into the realm of modern Russian legislation won't be out of place.
Speaking of the subject in question, a Federal Law was adopted in execution of the Constitution, "On the Right of the Citizens of the Russian Federation to the Freedom of Movement, to Choosing Their Place of Stay and Residence within the Boundaries of the Russian Federation". For the sake of brevity, we will refer to this law by its number: FZ#5242-1 (FZ is an abbreviation for federal'ny zakon - federal law).
According to the provisions of this Law, every citizen of Russia has the right to enjoy the freedom of movement and to choose his place of stay and residence within the boundaries of the Russian Federation. Restrictions of this right are only possible in cases provided for by the law.
That's what FZ#5242-1 actually does - defines such cases, namely:
(1) When a citizen is in the borderland;
(2) In closed military cantonments;
(3) In closed administrative-territorial formations;
(4) In zones of ecological disaster, in specific localities or populated areas where, in the case of a danger of the spread of contagious or mass non-contagious diseases or poisonings of people, special conditions and regulations have been introduced for the residence of individuals and their economic activities;
5) Lastly, in territories where a state of emergency has been declared.
That's it. The list is closed. The legislation currently in force in the Russian Federation gives no other grounds for restricting the freedom of citizens' movement (not counting the procedure of registration itself).
With the purpose of providing the conditions necessary for a citizen to exercise his rights and freedoms, as well as to carry out his responsibilities before other citizens, FZ # 5242-1 makes it incumbent upon citizens to register themselves at the place of their stay and at the place of their residence. So that this process could be regulated in some way, specific rules of registration are required and these must be approved by the Government of the Russian Federation. Therefore, in execution of FZ # 5242-1, on July 17, 1995, the Government of the Russian Federation issued its Decree # 713, approving the Rules of Registering Citizens of the Russian Federation and Striking Them off the Register at Their Place of Stay and Place of Residence within the Boundaries of the Russian Federation.
A little digression. FZ # 5242-1 was adopted on June 25, 1993, and the Rules were approved by the Government on July 25, 1995. This despite the fact that, according to the Decree # 5243-1 of the Supreme Soviet of the Russian Federation issued on June 25, 1993, the Russian Government had been obligated to develop these rules, as well as bring its normative legal enactments in conformity with FZ # 5242-1, in two months' time. Two years instead of two months! What was that - lousy work on the part of the Government or a conspiracy of the bureaucrats against the freedoms of the citizens of their own State? Whatever the case might be, the Russian citizens were practically barred from exercising their constitutional right to the freedom of movement for two years. Here's a pretty kettle of fish!
The Rules established the procedure of registration. The Rules must be followed. But, so that a bureaucrat could understand the Rules and follow them, they must be explained to him first. A set of instructions is simply indispensable. And, to be sure, one was adopted. The Instructions for the Application of the Rules of Registering Citizens of the Russian Federation and Striking Them off the Register at Their Place of Stay and Place of Residence within the Boundaries of the Russian Federation were approved by Order # 393 of the Minister for Internal Affairs of the Russian Federation, issued on November 23, 1995.
Some survivals in the modern Russian legislation, dating back to the good old Soviet times, are a class by themselves. By these I mean Articles 178, 180 and 181 of the Code on Administrative Transgressions of the Russian Soviet Federative Socialist Republic. The legal enactment in question was adopted in 1984, the above-mentioned articles have existed in unchanged form ever since and are theoretically still in force - at least, nobody has abrogated them.
A little about their contents and practice of application.
The officers of the Moscow militia have become much more knowledgeable today than, say, a couple of years ago. Now every militia patrol officer knows of the existence of Article 178 and, when he is doing a routine check of your passport in the street, he will not fail to show his knowledge off. Especially if your passport contains the discriminating entry saying you originate from another city or town.
So what is that terrible Article denying citizens (note - only non-Muscovites!) the right "freely to travel" in the streets of the capital of their own country?
"The residence of citizens that are obligated to have passports without a passport or with an invalid passport, as well as without a residence permit or registration..." (Article 178 of the Code on Administrative Transgressions) - this is the transgression that every Moscow militiaman on point-duty charges citizens with (by citizens I mean permanent residents of other cities, Muscovites do not count). I. e., in his opinion, if you are taking a stroll through the streets of Moscow, then you are residing in that city and, if so, would you be so kind as to have the appropriate registration?
But what if the citizen is a transit passenger and simply wants to admire the beauties of Moscow, what if he has just arrived and simply hasn't had time to get registered in the proper manner, what if …but there are no "what ifs" for the Moscow militia. Know, O citizen, that in the eye of the militia you are a transgressor a priori. So, citizen, will you kindly produce your ticket?
This is not any sort of exaggeration, this is reality. This is the attitude of the authorities of the capital towards non-Muscovites, who are, let us note in passing, citizens of the state called Russia exactly in the way Muscovites are. The Mayor of Moscow will get himself hoarse defending the rights of the Russian-speaking population way out there, in other countries (there's no denying this is a necessary and noble cause), but citizens of his own country will not find any protection on the territory of Moscow, on the contrary, they will be insulted and humiliated there.
There are the Constitution, the Law, the Rules and even the Instructions for the Application of the Rules. It would seem there is nothing else to be desired. The bureaucrat can work with perfect ease, registering citizens, counting them up, following their movements and checking who is headed where and even on what purpose.
But no, it turns out that there remains quite a lot to be desired. Thing is, the Russian Federation is made up of subjects of this very Federation. And the subjects - regions, territories and so on - are full of a creative zeal. What they want to create is, obviously, legislation. Plus rules in execution of the legislation. Plus sets of instructions for the application of the rules. And the main thing is to ensure that all these papers have a peculiar twist to them, a distinctive regional flavor, something truly "subjective".
Thus , the Government of the City of Moscow and the Government of Moscow Region considered it their duty to join forces in combating the freedom of citizens' movement and adopt, by their joint Decree # 241-28, issued on March 20, 1999 (they didn't have the nerve to issue a full-fledged Law), a set of Rules of Registering Citizens of the Russian Federation and Striking Them off the Register at Their Place of Stay and Place of Residence in Moscow and Moscow Region.
A similar set of rules had been adopted earlier in 1995 (approved by Decree # 1030-43 of the Governments of Moscow and Moscow Region, issued on December 26, 1995), a document that had, by the way, repeatedly drawn the attention both of the Constitutional and of the Supreme Courts of the Russian Federation. Actually that was what had motivated the authorities of the capital to adopt the new Rules, so to speak, a new version of the Rules, more liberal as compared to the old one.
And then there was a big bang! Having proved totally impotent in combating terrorism, the Moscow authorities decided to wreak their vexation on non-Muscovites and hurriedly cooked up the so-called Instruction # 1007-RM of the Mayor of Moscow, issued on September 13, 1999, "On Urgent Measures to Ensure the Proper Order of Registering Citizens Temporarily Staying in the City of Moscow", followed by Decree # 875 of the Government of Moscow, issued on September 21, 1991, "On Approving the Temporary Regulations for Deporting Persons Grossly Violating the Rules of Registration beyond the Limits of the City of Moscow and to the Place of their Permanent Residence".
I think it would be unnecessary to speak of the contents of the above-mentioned Moscow regulations or to specify exactly which parts of them contradict the Federal legislation and to what extent they violate the constitutional rights of Russian (and not only Russian) citizens. A lot (and many times) has been said on this issue. I'll just mention the principal contradiction, essentially consisting in that all these "Moscow" rules are illegal and unconstitutional, so to speak, "by birth" (the same applies to similar rules adopted in the other subjects of the Federation). Why? Because Article 71 of the Constitution of the Russian Federation says it in so many words: the regulation and protection of human and civil rights and freedoms falls within the jurisdiction of the Russian Federation. It is only the protection thereof that, under Article 72 of the Principal Law, falls within the joint jurisdiction of Russia and its subjects.
OK, I can almost hear the partisan of Moscow law-making cry, but there is Article 76 of the Constitution, its Section 2 giving the subjects of the Federation the right to promulgate normative legal enactments with regard to the areas of joint responsibility of the Federation and its subjects and in accordance with the federal laws. To this I will retort that the regulation (falling exclusively within the jurisdiction of the Federation) of human rights and freedoms consists in the promulgation of laws and normative legal enactments, while the protection thereof consists in the rigorous observance of the said laws and enactments (and nothing more). Besides, I would like to tell my opponent that protection does not imply creating hindrances in the exercise of rights and freedoms, but, on the contrary, facilitating that exercise as much as possible.
In addition to that, I'd like to remind the readers that laws and other legal enactments adopted in the Russian Federation must not contradict its Constitution (Article 15 of the Principal Law) and that the laws and other normative legal enactments of the subjects of the Russian Federation cannot conflict with federal laws (Article 76, Section 5 of the Russian Constitution).
According to the same Article 15 of the Constitution, "any normative legal enactments affecting human and civil rights, freedoms and duties cannot be applied unless they have been officially published for universal information". What I am driving at is that Yuri Mikhailovich Luzhkov is famous for not making his normative legal enactments public - he isn't trusting the people very much, it seems… However, this not very relevant to the subject we are discussing, as the subject itself is entirely outside the jurisdiction of Mr. Luzhkov and his subordinates.
A conclusion suggests itself: what the Government of Moscow (as well as the Governments of the other Federation subjects) are engaged in is nothing else but sheer arbitrariness, while the above-mentioned normative enactments regulating relations pertaining to the registration of citizens at the place of their residence or temporary stay are illegal (one is tempted to say "illegitimate" - as in "illegitimate child") and have no legal force. Note that all this is not "in execution" of the Constitution, but "in contradiction" to it.
These enactments might be legally invalid all right, but, for some reason, it is them that the Moscow authorities prefer to be follow. And nothing happens. The Moscow bureaucrats are hale and hearty and even getting fatter. Lying at the root of all this is their impunity.
What is a civil lawsuit to a bureaucrat? You cannot get at him with a lawsuit, as, even if a civil process takes place and the plaintiff wins it, the one found guilty will be the State. And as to the State, you cannot, as the proverb goes, draw blood out of a stone.
It would take some stronger stuff to get at a bureaucrat. Such as criminal responsibility.
"Violating the equality of citizens' rights depending on their … race, ethnic origins, … place of residence … that has caused harm to the rights and legal interests of citizens is punishable by a fine to the amount of two hundred times to five hundred times the minimum wage or to the amount of the wages or other incomes of the convicted person for a period of two to five months, or by imprisonment for a term of up to two years " (Article 136 of the Criminal Code of the Russian Federation).
The Criminal Code also contains provisions punishing exceeding one's official authority (Article 286), illegal detention (Article 301), arbitrariness (ÓÔ. 330).
Note. But as to the genocide (Article 357 of the Criminal Code) that some authors try to charge the Moscow authorities with, that, in my personal opinion, is carrying the thing too far. There is no genocide here. Genocide is a question of ethnic strife. Registration is a legal issue, whereas relations between ethnic groups and races is are a political one.
When dealing with bureaucrats wearing the militiamen's uniform, one would like to recall Article 42, Section 2 of the Criminal Code, under which "a person that has committed a premeditated crime in execution of an order or instruction known in advance to be illegal bears criminal responsibility without special preferences", while "failure to execute an order or instruction known in advance to be illegal excludes bearing criminal responsibility". By the way, ignorance of a law does not free one of responsibility - that's a legal principle known even to schoolchildren.
In addition, I would like to point out that the bureaucrat should not try to hide behind those provisions of the law that seemingly allow one to evade criminal prosecution. Such as Article 14, Section 2 of the Criminal Code, which does not recognize as a crime an action (or failure to act) which, although formally containing the distinctive features of a deed provided for in the Criminal Code, does not pose a threat to public safety due to its insignificance. One should not class as such, for instance, the illegal detention in the streets of Moscow of a person permanently residing elsewhere and lacking a Moscow registration stamp in his passport and the (as a rule, also illegal) imposition of a 10 rubles fine on him under Article 178 of the Code on Administrative Transgressions of the Russian Soviet Federative Socialist Republic. One might argue that, although the 10 rubles have been levied illegally, the sum itself is small, insignificant. Dear ladies and gentlemen! Article 136 of the Criminal Code does not punish for extortion, it punishes for causing harm to the rights and legal interests of citizens and these cannot be given a financial estimate because they cannot be sold.
Note. Comrades/Messrs. Moscow militiamen! Please pay attention that, in doing routine passport checks in the streets, you should not follow the "creative works" of the Moscow Mayor in the field of normative enactments. This is against the law. What one should follow instead is the Constitution of the Russian Federation (Article 27, Section 1), the Federal Law "On the Right of the Citizens of the Russian Federation to the Freedom of Movement, to Choosing Their Place of Stay and Residence within the Boundaries of the Russian Federation" issued on June 25, 1993, by Government Decree # 713 issued on July 17 and the Rules of Registering Citizens of the Russian Federation and Striking Them off the Register at Their Place of Stay and Place of Residence within the Boundaries of the Russian Federation approved by it, as well as by the Instructions for the application of these Rules approved by Order # 393 of the Minister for Internal Affairs of the Russian Federation, issued on November 23, 1995. Please take this into consideration and bring it to the notice of your superiors.
That's the spirit! We do have the legal instruments at our disposal that allow us to defend our right "freely to travel".
However, we've heard nothing about such processes. We will stand in endless queues to get registered, we will humiliate ourselves, we will bow before the bureaucrats and try to ingratiate ourselves with them … We are law-abiding citizens.
And we will select a scapegoat, the topmost of them all, say, the Moscow Mayor. And we will blame him in unison, saying what a bad guy he is, that it is him that is to blame for everything, it is him that violates our right to move freely. We are even going to make plans for instituting criminal proceedings against him. In the meanwhile, Yuri Mikhailovich Luzhkov does not care a fig - he, as a member of the Council of the Federation, is shielded by his senator's immunity and it is simply stupid to threaten him with criminal responsibility. He is like the elephant in the famous fable by Ivan Krylov - and we are the "little doggy" impotently barking at him. And this state of things will continue until we realize that it is not so much the capital's Mayor that is to blame, as the System, a System that profits from keeping the citizens deprived of their civil rights. The name of this System is bureaucracy and the Moscow Mayor is just a part of it.
There is only one conclusion to be made. To make the bureaucrat afraid of violating the law, one must stir up the whole of the officialdom. What we need is a show trial. Instituting criminal proceedings against a single official on the charge of violating the human right freely to travel - and giving worldwide publicity to the trial - will make, is bound to make, the entire bureaucratic brotherhood to take a very different approach to human rights.
However, fear is an insecure means. Who knows what a cornered bureaucrat is capable of? The law is in his hands, it is precisely the law that he uses to cover up all his shady dealings. Therefore the law should be changed. Changed not just on the local level, but on the Federal level too. The oft-mentioned Federal Law "On the Right of the Citizens of the Russian Federation to the Freedom of Movement, to Choosing Their Place of Stay and Residence within the Boundaries of the Russian Federation" has long stood in need of replacement. Because it is obsolete and has been so since the Year of Grace 1998.
The problem with FZ # 5242-1 is that its whole legal structure rests on the distinction between the registration of citizens at their place of residence, on the one hand, and at their place of temporary stay, on the other. Such an opposition was to some extent justified until February 2, 1998. But the adoption of Decision # 4-P of the Constitutional Court of the Russian Federation rendered it completely meaningless.
Let me remind you that the Constitutional Court admitted in this Decision that "setting a term, at the expiration of which a citizen is obligated to leave his place of stay, constitutes an interference of the bodies of executive power and other bodies responsible for registration into the sphere of civil, housing and other relations based on the mutual agreement of parties and restricts the constitutional right of citizens to the free choice of their place of stay and residence". Paragraphs 10, 12 and 21 of the Rules approved by Decree # 713 of the Government of Russia, issued on July 17, 1995, that had established grounds for denying registration to citizens and set up certain time limits of temporary registration (6 months), were ruled unconstitutional and not to be applied.
Thus, a citizen's temporary stay is not restricted by any time limits. You can get registered at the place of your temporary stay for any period - for a month, for two months, for five years. What's to prevent you from getting registered at the place of your temporary stay for life?
What does the difference between the place of temporary stay and the place of permanent residence consist in now?!!
There remains only one criterion, one that is usually not mentioned aloud. That criterion is the separation of citizens into classes according to their place of residence. Our own people vs. those others, Muscovites vs. non-Muscovites, first-rate persons vs. second-rate persons… Doesn't that remind you of something? This phenomenon is unfortunately the most conspicuous in the capital of our great Motherland, in Moscow. They are coming in swarms, those uncouth provincials! A sort of Moscow chauvinism.
But the problem is not restricted to Moscow. Let us recollect that the close attention of the Constitutional Court has been attracted not only by the Moscow "subjective" rules for citizen registration, but also by those existing in Voronezh, in Stavropol. The permissive system of registration, which means huge queues to the office of the boss (to obtain that very registration), exists all over the country.
What is needed is changing the law on the Federal level and eliminating ambiguity in its interpretation in the regions. What is needed is doing away with the distinction between registration at the place of residence and at the place of temporary stay and establishing a single system of registering citizens (there is no need to change the Constitution to achieve that). What is needed is changing the system!
In conclusion, I would like to point out that the current system of registration (earlier known as propiska - residence permit) is nothing else but a survival - no, not even of the Soviet Union, but of the Russian Empire. Because what the registration (a.k.a. propiska) is doing to us is bind us down to the land and prevent us from tearing ourselves free. Like krepostniye - the serfs of the olden times. However hard Czar Alexander II the Liberator tried to give freedom to his people, we have all remained land-bound serfs to this day! That is why solving this problem is so painful, takes so excruciatingly much time, meets with such great difficulties - solving the problem of emancipation, of freeing the serfs. We have to take away from the System our freedom, the freedom of movement. A freedom belonging to us from birth onward!