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Spring, 1998

39 Harv. Int'l L.J. 545

RECENT DEVELOPMENT: THE DEMISE AND RESURRECTION OF THE PROPISKA: FREEDOM OF MOVEMENT IN THE RUSSIAN FEDERATION*

* All translations are those of the author, unless otherwise noted.

Noah Rubins**

** Noah Rubins is a J.D. candidate at Harvard Law School and an M.A.L.D. candidate at the Fletcher School of Law and Diplomacy. He has worked in the NGO sector in Kyrgyzstan, at the U.S. Embassy in Russia, and in private legal practice in Turkey.

SUMMARY:
... The weakening and subsequent dissolution of the Communist regime in Russia created widespread hope that the restrictive residence permit system known as propiska would be abandoned, ensuring freedom of movement for Russian citizens. ... Although a minimal federal "residence tax" would not necessarily form an insurmountable obstacle to freedom of movement (particularly if provision was made for waiver in the case of destitute applicants), such fees are now at the core of local efforts to keep the propiska alive. ... Although not explicitly, the Rules seem to prohibit local authorities from refusing registration, except under certain relatively limited circumstances: (1) if written permission is not obtained from the owners of the residence in which the visitor will reside; (2) the visitor resides in a home which he has rented, built, or bought without proper title; (3) the residence occupied by the visitor has been confiscated for criminal investigation or other purposes; or (4) the visitor has submitted counterfeit documents. ... As of 1996, at least ten regions had retained the propiska or passed new provisions requiring discretionary official permission for registration. ...

TEXT:
[*545] The weakening and subsequent dissolution of the Communist regime in Russia created widespread hope that the restrictive residence permit system known as propiska would be abandoned, ensuring freedom of movement for Russian citizens. ¹ Despite significant liberalization of the legal regime governing freedom of movement, Russian citizens still face major restrictions.

The struggle over the resilient propiska reveals deep fissures in Russia's federal structure and highlights the inability of the Constitutional Court and federal government to safeguard civil rights. The curtailment of the freedom may be a harbinger of graver problems for the Russian legal regime. Moreover, without unhindered circulation of its population, Russia is likely to face difficulties in the course of its economic development. ² However, neither the existence of pressure from the international community nor the exigencies of economic development are likely in the near term to overcome the internal forces maintaining the propiska.

[*546] This piece traces recent changes in legal rules governing travel and settlement in post-Soviet Russian law, examining executive orders, legislation, Constitutional Court decisions, and regional ordinances treating freedom of movement that have been passed since 1993. It further examines local statutes and practices, revealing that legal and political obstacles continue to hamper the local implementation of federal mandates and deny citizens the benefits of full freedom of movement. ³

I. POST-SOVIET LEGAL CHANGE

The Soviet government used the propiska to restrict migration into the country's most livable regions. ⁴ Residence permits were also restricted [*547] for "undesirable elements" and ex-convicts, ⁵ who were prevented from making their homes in Russia's largest cities. Without a propiska, citizens could not work, rent an apartment, marry, or send their children to school. ⁶

Two principal forces have combined in the post-Soviet era to influence a highly symbolic move away from the propiska. First, Russian federal authorities in the post-Soviet era, particularly in the executive branch, have been acutely aware that the development of the economy and protection of security interests during the crucial transitional phase depend to a large extent on constructive relations with Western governments and international organizations. ⁷ Russia's record on human rights can strongly influence these relations, ⁸ particularly as Western governments face shrinking foreign aid budgets and constituencies asking pointed questions about the destination of their taxes. Russia's entry into the Council of Europe was delayed for such reasons, in part because of regional limitations on the right to move and settle. ⁹ Should [*548] Russia contemplate entry into certain European organizations, the freedom of movement issue may be an obstacle. ¹⁰

The second major force driving a move away from the propiska is based on economic considerations. Russian leaders versed in the realities of the capitalist system also realize the detrimental economic effect of a continued propiska system. While continued restrictions may prevent a mass exodus from the impoverished countryside and relatively inhospitable North and East, ¹¹ studies suggest that free movement of labor is an important component in the transition from a command economy to a market system. ¹²

A. Federal Reform Efforts

1. The Law on Freedom of Movement and Rules on Registration and De-Registration

a. 1993 Law on Freedom of Movement

In June 1993, the Russian Supreme Soviet passed a law initiated by President Yeltsin entitled "On the Right of Russian Citizens to Freedom of Movement and Choice of Place of Sojourn and Residence within the [*549] Borders of the Russian Federation" ¹³ [hereinafter "the Law"]. The opening article of the Law clearly grants the right "to freedom of movement, choice of place of sojourn and residence," ¹⁴ at least on its face a remarkable departure from the traditional propiska. Article 3 charges the Government with the formulation of the registration regime itself, ¹⁵ while the Ministry of Internal Affairs is to verify compliance by both citizens and officials. ¹⁶

Article 8 outlines a number of situations under which "the rights of Russian citizens to freedom of movement . . . may be restricted on the basis of law." Border areas, "closed military cities," "closed territories," ecological disaster areas, and cities quarantined for health reasons are all subject to state control of entry, exit, and residency. ¹⁷ No less worrisome is the exception made for "territories where a state of emergency is in effect." ¹⁸

A final limiting stipulation is found in the taxation provisions of Article 3. The Law not only allows, but requires, the collection of a "government levy" from citizens who register in their place of residence. ¹⁹ Although a minimal federal "residence tax" would not necessarily form an insurmountable obstacle to freedom of movement (particularly if provision was made for waiver in the case of destitute applicants), such fees are now at the core of local efforts to keep the propiska alive.

The Law requires a system of mandatory, notification-based residence registration, ²⁰ analogous to registration for tax, census, draft, emergency, and other administrative purposes practiced in Western Europe. ²¹ [*550] Registration procedures are implemented by local authorities according to uniform federal rules (see Part I.A.1.b, infra). At least on paper, the difference between a residence permit and universal registration is significant: in a permit system administrative bodies retain discretion to reject applications, while in a notification regime the government has no authority to withhold registration. In addition, proof of registration under a notification regime can take any number of forms, including a driver's license, student card, or passport, while proof under a permit system requires citizens to produce the internal passport whenever confronted by a government official. ²²

b. 1995 Rules on Registration

For two years after the passage of the Law, no guidelines existed to give shape and uniformity to its registration provisions. ²³ Not until July, 1995 did the Russian government, led by Prime Minister Viktor Chernomyrdin, issue its "Rules on the Registration of Citizens of the Russian Federation and their Removal from the Roster According to Place of Sojourn and Residence within the Russian Federation" [hereinafter the Rules]. ²⁴ Besides installing a European-style notification-registration system, the new Rules gave the Ministries of Justice and the Interior just three months to provide workable amendments to existing federal legislation in order to bring all laws into line with the 1993 Law. ²⁵

The Rules establish different procedures for visitors and permanent settlers. Visitors planning to stay in a given region more than ten days must within three days appear personally at the local police station and present their identification in order to receive a three-month registration [*551] in the region. ²⁶ Although not explicitly, the Rules seem to prohibit local authorities from refusing registration, ²⁷ except under certain relatively limited circumstances: (1) if written permission is not obtained from the owners of the residence in which the visitor will reside; (2) the visitor resides in a home which he has rented, built, or bought without proper title; (3) the residence occupied by the visitor has been confiscated for criminal investigation or other purposes; or (4) the visitor has submitted counterfeit documents. ²⁸

Newly arrived citizens desirous of permanent residence in a given region must submit an application within seven days of arrival. As with temporary visitors, new residents must be granted registration within three days, except in certain extraordinary situations. Potential permanent residents face a wider array of exceptions, including all of those disqualifying temporary residents plus: (1) the building in which the settler is to live is likely to collapse; (2) the amount of floor space rented or bought by the settler is less than the per capita norm established by federal law; ²⁹ (3) a court order prohibiting the settler from cohabiting with his minor children would prevent the proposed settlement; or (4) the settler has provided inauthentic title, rental, or lease documentation. ³⁰

Though arguably the Rules both reinforce and undermine the 1993 Law and constitutional provisions on freedom of movement, they provide an orderly system of population tracking in case of security or health threat. However, the acceptable grounds for refusal, ³¹ particularly those for permanent residents, leave open a great deal of room for local administrative discretion. The Rules do provide for appeal of refusal through the courts or superior administrative bodies, ³² but the provision is buried in several pages of text and ordinary people refused registration are unlikely to be aware of its existence.

2. Constitution of the Russian Federation

On December 12, 1993 a new Russian constitution was adopted by popular referendum. ³³ The document, drafted by Yeltsin's inner circle [*552] of trusted associates, ³⁴ reinforced the June law in two ways. First, language from Article 1 of the Law "On the Right of Russian Citizens to Freedom of Movement" is tracked nearly verbatim in Article 27.1: "Any individual legally within the territory of the Russian Federation has the right to move freely about and to chose his place of sojourn and residence." ³⁵ Article 27.2 incorporates the provision in the Law extending freedom of movement to the vast group of individuals who are not Russian citizens but have entered the country legally. ³⁶ The inclusion in the Constitution of principles already contained in the Law effectively narrowed one of the loopholes in the provision, namely the circumscription of freedom of movement by the law and Constitution of the Russian Federation. ³⁷

Second, the Constitution takes the extraordinary step of affording many international norms automatic force of law. ³⁸ Article 18 states that "human and civil rights and freedoms have direct effect. They determine the meaning, content, and application of legislative and executive authority and local self-governance, and are to be guaranteed by the judiciary." ³⁹ Article 17 specifies which rights are to be implemented: "In the Russian Federation, human and civil rights are recognized and guaranteed according to generally-recognized principles and norms of international law." ⁴⁰ In practice, however, Article 18 gives municipal legal force to a narrower set of rights, namely those codified in treaties and conventions signed by the Russian Federation. ⁴¹

The Universal Declaration of Human Rights (UDHR), for instance, establishes the freedom of movement in Article 13. ⁴² The International [*553] Covenant on Civil and Political Rights (ICCPR) provides the right of those legally within a member-state to move freely and choose their place of residence in Article 12. ⁴³ Unlike the UDHR, the ICCPR circumscribes this right with a number of exceptions. The state may abridge the right on the basis of law, to the extent necessary "to protect national security, public order, public health or morals or the rights and freedoms of others." ⁴⁴ Since joining the Council of Europe (CE), ⁴⁵ the Russian Federation has adhered to the CE Charter and the Convention on the Protection of Human Rights and Fundamental Freedoms, ⁴⁶ which further anchor the freedom of movement in Russian law through the Constitution.

The provisions of these international documents are enforceable under the Constitution by any court of general jurisdiction, or by individual complaint to the Constitutional Court of the Russian Federation. ⁴⁷ This powerful weapon has yet to be used extensively byprivate citizens. Russians may be wary of involvement with a traditionally oppressive legal system, and most are ignorant of their recently expanded rights, with extremely limited access to legal counsel. ⁴⁸ Furthermore, procedures and remedies for claims based in international law are unspecified by the Constitution.

3. Civil Code of the Russian Federation

The Civil Code of the Russian Soviet Federated Socialist Republic [hereinafter "the Code"] continued in force with only sporadic amendment until the adoption of Part One of the Russian Civil Code on October 21, 1994. ⁴⁹ The new Code continued the clear stance on rights and freedoms embodied in the Constitution, devoting an entire chapter [*554] to "Civil Rights and Obligations, Realization and Protection of Civil Rights."

Article 150 establishes a number of rights, including the "right to free movement, choice of place of sojourn and residence," as "inalienable, non-material goods, belonging to citizens from birth." ⁵⁰ The advantage of the Code over other forms of protection already outlined is its unusually explicit mechanism for redress for violations of the right to freedom of movement and choice of residence. Unlike the vague constitutional provisions regarding judicial enforcement of human rights treaties, Article 150.2 of the Code extends the remedies established by Article 12, prescribed for civil rights violations in general, to cases in which freedom of movement has been infringed. Remedies in Article 12 include restitution, injunction, invalidation of the offending statute, specific performance, compensation for material loss, and compensation for emotional distress. ⁵¹ Any court of general jurisdiction can invoke these remedies. The widespread lack of information about the new Civil Code and a shortage of qualified lawyers ⁵² will, in the short term, likely limit the invocation of Article 150 in cases where newcomers are denied a residence permit. ⁵³ However, the Civil Code's precise language and broad application should make it accessible to a broad range of people in the long run, ⁵⁴ providing an important tool to reinforce Russians' ability to settle where they please.

[*555] B. Problems with Legal Change at the Local Level

As the 1996 and 1997 Constitutional Court decisions make clear, the campaign to eliminate the propiska at the federal level met with resistance in many parts of Russia. ⁵⁵ As the federal government gradually relaxed restrictions on movement in 1993 and 1994, many regional administrations learned to evade the freedom of movement provisions of the Law and Constitution. ⁵⁶ Later, more ordinances were passed to adapt residence restrictions to the Constitutional Court decisions of 1996-98. ⁵⁷

Often a single jurisdiction employs more than one technique, layering bureaucratic and financial burdens on citizens seeking to relocate there. In some cities, registration provisions require payment of unmanageably high fees -- up to $ 7,000 (about 50 times the minimum monthly wage) in Moscow. ⁵⁸ The region surrounding the capital established fees totaling about $ 6,000 for towns nearest the city, and $ 4,000 for outlying areas. ⁵⁹ These fees make registration facially non-discretionary -- the primary demand of the Rules -- but nonetheless absolutely inaccessible to all but the wealthiest Russian citizens.

[*556] As of 1996, at least ten regions had retained the propiska or passed new provisions requiring discretionary official permission for registration. The terms for granting permission for registration usually depend on the presence of relatives, a person's family status, age, social status, and also on local health regulations. Forced migrants have had the most difficulty in acquiring a residence permit under most of the new rules. ⁶⁰

Another technique used by local governments to restrict entry is to require, before registration, that newcomers prove they have a place to stay. Such ordinances state a minimum space per person (18 square meters in Moscow) ⁶¹ which must already be at the applicant's exclusive disposition at the time documents are submitted. Because the Russian labor and real estate markets are sorely underdeveloped, most Russians moving to a new city arrive homeless and unemployed. ⁶² They hope to live with family or friends until they find a job, but since employers are not permitted to hire unregistered workers, newcomers are effectively shut out. ⁶³

Stavropol, a populous southern province bordering Chechnya, provides a prime example of a region that combines various statutory obstacles to nullify all of the central government's provisions on freedom of movement effectively. ⁶⁴ Decree No. 118-8 of the Stavropol Regional Legislature, adopted October 6, 1994, established a "temporary regime for the arrival and permanent settlement in Stavropol," which has since been amended twice but remains in force today. ⁶⁵ The system calls for (1) mandatory payment for the right to reside in the region; (2) restriction of permit issuance in the border city of Mineral'nye Vody (the most common point of entry for refugees from the south) to an annual quota of half of one percent of the city's population; and (3) mandatory registration within ten days of the decision to reside in the region. ⁶⁶

Adding to such commonly adopted local restrictions, "red tape" has reportedly increased in many cities, making the process of obtaining residence registration unbearable. Standing in line for days, enduring insults, harassment, and bribes at every turn are not uncommon. ⁶⁷

[*557] Even areas of the country where local authorities were amenable to the elimination of the propiska did not receive new registration forms for months after the governmental decree, and therefore continued with the previous practice by default. As a result, millions of Russians found themselves ineligible to vote in the 1995 Duma elections. ⁶⁸ Still other regions interpreted the new registration procedure as non-self-executing, and local provisions implementing the system are still being debated in regional legislatures. ⁶⁹

Crime, poverty, industrial collapse, and unemployment in the wake of the Soviet state's demise are important obstacles to reform and provide Russian politicians with excuses that resonate positively with public opinion. ⁷⁰ One constitutional law textbook published recently in Moscow states apologetically: "The conditions necessary for implementation of the law [eliminating residence permits] are still lacking. Obstacles include housing problems, social instability in the country, the lack of regimentation of the legal status of state boundaries, the extremely high crime rate, etc." ⁷¹

Officials in border regions and larger cities often see the swelling tide of migration, ⁷² whether induced by economic or political conditions, as a threat. ⁷³ St. Petersburg Mayor Anatoly Sobchak, for example, defended his city's continuing strict residence permit regime in 1994, declaring his "right to maintain the system as long as the borders of Russia are not protected well enough to keep illegal immigrants out." ⁷⁴ Many of the other regions that still hold on to registration restrictions either border zones of conflict or abut the extremely porous frontiers with other CIS states. Stavropol Krai, in the North Caucasus, and Voronezh, in the Central Black-Earth area bordering Ukraine, are two [*558] of the most notorious violators of freedom of movement. From 1990 through 1992 alone, the North Caucasus saw a net influx of over 330,000 and the Central region took in 140,000; this even before the displacement of 400,000 people from nearby Chechnya. ⁷⁵

Framed in the words of Richard Posner, "rights impose costs (not all of them monetary) as well as confer benefits." ⁷⁶ Political structure and lack of respect for the law are important factors in the suppression of civil rights in Russia, but the economic burden of free circulation of populations (at least as calculated by regional leaders of limited financial ken) takes a toll as well. ⁷⁷

C. The Response of the Constitutional Court

Faced with the widespread violation by local bodies of freedom of movement, as codified in Article 27 of the Constitution, the 1993 Law, and the 1994 Civil Code, officials from all branches of the central government ⁷⁸ looked to the Constitutional Court as the "only effective remedy." ⁷⁹

Moscow University law professor, Valery Zorkin led the Constitutional Court, which was created in October, 1991. ⁸⁰ That court proved too timid and structurally vulnerable to hand down unambiguous pronouncements on politically controversial matters. ⁸¹ It primarily examined separation of powers cases that were brought by fractious Supreme Soviet deputies against the executive branch of the government. ⁸² The [*559] court was suspended in 1993 ⁸³ and reestablished under a new law two years later. ⁸⁴

1. The 1996 Decision

The new Constitutional Court handed down its first decision in March 1995. ⁸⁵ Under its new charter, the Court exercised discretionary jurisdiction over constitutional cases brought by government agencies, public officials, or private citizens. ⁸⁶ The propiska came under Court scrutiny in the summer of 1996 ⁸⁷ by a joint action of the President of the Siberian republic of Komi and two private citizens. Komi leader Y. Spiridonov questioned the constitutionality of local statutes in the city of Moscow, Moscow Region, Stavropol Region, Voronezh city, and Voronezh Region. ⁸⁸ V. Kutsyllo and R. Klebanov protested only the Moscow statute of September 1994, "on the collection of money for compensation of municipal budgetary expenses for the development of [*560] city infrastructure and provision of social and living conditions to citizens arriving in Moscow for permanent residence." ⁸⁹

The Court, led by Chairing Justice O.I. Tiunov, invalidated the statutes of all five regions as inconsistent with the Constitution of the Russian Federation. Most far-reaching in the decision's argumentation is the articulation of exclusive federal prerogative in exercising the limitations on civil rights outlined in the Constitution, Civil Code, and elsewhere. "The limitation of the right to choose one's place of residence can be introduced only by federal law, [and only] to the degree necessary to defend the basis of constitutional governance, morality, health, the rights and legal interests of others; for the national defense and security of the state." ⁹⁰ The Court clarified that the loophole contained in Article 8 of the 1993 Law must be interpreted narrowly, only to be invoked by federal authorities. Thus, while the federal government may establish quotas for settlement in Mineral'nye Vody based on security or public health concerns, the Stavropol regional legislature is not empowered to do so.

Further, the Court found that while Federation subjects have the power to establish taxation systems to suit their particular needs, this power is invalid if used to effect limitations of fundamental rights such as freedom of movement. ⁹¹ Thus, Article 18 of the Constitution must be taken literally in its admonition that human rights and freedoms define the meaning, content, and application of the law. Furthermore, since indiscriminate and excessive registration fees abridge the constitutionally guaranteed freedom of movement and principle of equality before the law, the Court argued, such statutes must be without force. Taxation must be implemented according to "just distribution of income and differentiation of taxes and duties." ⁹²

In a concurring opinion, Justice Baglai supported the majority deification of the freedom of movement as "fundamental," but warned against extrapolating "the equality and rights of citizens to the point of absurdity." ⁹³ She argued that preference in registration regimes might constitutionally be given to certain categories of citizens, such as decorated [*561] veterans of World War II, and that differentiation of fees for registration need not necessarily be indexed to income. Baglai reinforced the caveat attached to most rights in the Russian Constitution, stating that "the rights of some individuals may be limited by the reasonable defense of the rights of others, and just preferential treatment to some citizens can correct the ethical defects of formal equality of all." ⁹⁴

2. The 1997 Decision

Although the Court annulled local statutes in its 1996 decision, nearly analogous laws appeared immediately in most of the regions in question, and little or no change was made to registration laws in regions that escaped direct scrutiny. During the first five months of 1997, authorities in the Russian capital conducted more than 1.4 million identity checks, finding 737,561 "violations of registration procedures." ⁹⁵ More than 3,000 people were physically packed onto trains and "deported" from Moscow in 1996. ⁹⁶ In July 1997, only one year after its first ruling on the propiska, ⁹⁷ the Constitutional Court was again confronted with registration taxes in the Moscow Region. ⁹⁸

Rather than reiterate the sanctity of freedom of movement, the Court relied primarily on the exclusive federal power to tax in striking down a regional residence fee of more than 22.5 million rubles. ⁹⁹ This additional legal weapon in the arsenal against residence permits was unavailable during the previous year's examination, because Yeltsin's 1993 edict granting broad taxing powers to federation subjects was still in effect. ¹⁰⁰

[*562] 3. The 1998 Decision

The Constitutional Court attacked the residence permit regime yet again in February, 1998. ¹⁰¹ In its comparatively brief decision, ¹⁰² the Court further refined previous holdings to leave no doubt that a completely non-discretionary accounting of residency is all the Russian Constitution can bear. "Registration authorities have only the power to verify the citizen's act of free choice when he selects the place he will sojourn or live." ¹⁰³

This decision fundamentally differed from those preceding it because it targeted the federal executive rather than regional governments as the primary culprits in the propiska imbroglio. ¹⁰⁴ The Court referred to the 1995 registration rules (described supra, Part I.A.1.b) as "outside the boundaries of authority provided by the Consitution." ¹⁰⁵ In response to a complaint filed by the Nizhny Novgorod Governor, the Court found the Rules violated the Constitution in two ways. The six month limit on temporary residence was found to be "interference by executive organs . . . into civil, housing, and other legal relations." ¹⁰⁶ Second, grounds for refusal provided in the Rules were deemed unacceptable, as denial "would be used as a means of compulsion." ¹⁰⁷

The Court's 1998 decision further revealed the complexity of the residence permit problem. While the primary source of movement restrictions continues to be local, loopholes and incomplete implementation in the federal registration regime have exacerbated confusion and abuse. ¹⁰⁸

[*563] Although the federal government's desire to rein in Russia's recalcitrant regions has been an important factor in abolishing movement restrictions, the Kremlin has pursued other goals even less conducive to civil rights and the rule of law. ¹⁰⁹ In particular, a repeat of the 1993 altercation between the President and Cabinet on the one hand, and the legislature and judiciary on the other, is something the federal executive hopes to avoid. ¹¹⁰ While the Constitutional Court has been useful to Yeltsin as a legitimate means to upbraid Federation subjects that pass laws inconsistent with his policies, ¹¹¹ the Court's increasing legitimacy and independence are beginning to encroach on some of the prerogatives of the Presidency. ¹¹²

[*564] D. The Impact of the Decisions

The effect of these constitutional decisions on propiska is still unclear. Tamara Morshchakova, Deputy Chairman of the Constitutional Court, claimed in an interview that Moscow Mayor Yuri Luzhkov had "provided an example of obedience to the law." ¹¹³ After the 1998 decision, however, Justice Yaroslavtsev personally warned the Mayor that the Court would use "all legal means" to protect the right to move. ¹¹⁴ Luzhkov, for his part, was even more explicit about his intentions, stating defiantly in March 1998 that Moscow would ignore the latest ruling, "owing to budgetary constraints." ¹¹⁵

Morshchakova pointed out one of many obstacles to harmonizing local and central policy on residence permits. "The bureaucrat does all he can to delay implementation . . . they set various wild conditions [for receiving residence registration] . . . sign a promissory note that will later pay me whatever I ask, or they send people to the wrong place." ¹¹⁶

II. IS THE PROPISKA IMMORTAL?

There is little sign that the Constitutional Court decisions have had a significant effect upon local practices. The 1995-1996 wave of terrorist activity in Stavropol and Moscow in response to the Chechen conflict only served to reinforce regional leaders' determination to maintain tight control over the passage of people in and out of their jurisdictions. The repeat appearance of the Moscow region before the Court in 1997 is proof that defiance of the federal government continues, and the 1998 decision revealed serious problems in the behavior of federal authorities themselves. Despite the government's good intentions, incorporated in the documents we have examined, many citizens in the Russian Federation are still not free to choose their place of residence.

[*565] Nevertheless, a structural framework has been established that could someday lead to the elimination of most remnants of Soviet restraints on the right to move and settle. The 1993 Law, the Constitution, the Civil Code, and Constitutional Court decisions of 1996 and 1997 indicate a direction the rest of Russia may eventually follow. A free market economy and democratic governance, in addition to the full benefits of participation in the international community, will come only when the regions of Russia accept that their short-term gain should be sacrificed to the national good. Whether they will come to this conclusion on their own or by coercion from federal organs intent on supremacy remains unanswered.

The European system of obligatory registration seems a fitting burial ground for the propiska. It is consistent with relevant human rights norms, provides insurance against true emergency situations, and leaves some measure of reassurance for beleaguered Russian regions.

Even if the propiska is finally eliminated, however, freedom to move will remain a relative right for a long time to come. With poorly organized real estate markets, wildly divergent property prices between center and periphery, and nearly nonexistent mortgage and loan opportunities, ¹¹⁷ moving to Moscow presents more than just legal obstacles.

Independent of the effect on the freedom of movement, the persistence of propiska does not bode well for the rule of law in post-Soviet Russia. The role of the Constitution, both in terms of civil rights and in the regulation of federal-regional relations, is questionable as long as the Constitutional Court's decisions remain unimplemented. Further, at both national and subnational levels, economic and political realities continue to take precedence over legal norms. Russian citizens know that legal texts, even when they come repeatedly and from a variety of sources, are not dispositive. Authorities can hardly expect law-abiding behavior among the population as long as the government failures to adhere to its own laws.

At the very least, however, the Constitutional Court decisions on propiska and accompanying legislation have brought the debate on freedom of movement in Russia to the fore. No longer are such restrictions taken for granted; they are now a source of justified outrage from many quarters. But the lack of real change in the face of increasing pressure lends credence to Lawrence Lessig's perceptive aphorism on Russian legal reform: "Whether the new constitutionalism will work depends in part upon how well new structures escape old patterns. This, in turn, depends on whether constitutions can at all be effective in curing a culture of its most basic pathologies." ¹¹⁸ Whatever [*566] transformations have occurred in Russian law since 1992, in the end it will be political, economic, and moral change, as much as judicial ruling or legislative enactment, that finally eliminates the propiska system.

FOOTNOTES:

n1 See, e.g., Sheila O'Leary, Note and Comment, The Constitutional Right to Housing in the Russian Federation: Rethinking the Guarantee in Light of Economic and Political Reform, 9 AM. U. J. INT'L L. & POL'Y 1015, 1036-37 (1994).

n2 For a discussion of the effects of the freedom of movement on economic development in Russia, see generally LABOUR MARKET DYNAMICS IN THE RUSSIAN FEDERATION (O.E.C.D. ed., 1997). The relationship of free movement to economic growth is also well acknowledged in the United States and European Union. See, e.g., Edwards v. California, 314 U.S. 160 (1941), the most heralded U.S. Supreme Court case to deal with the subject, in which Justice Byrnes relied almost exclusively on the Commerce Clause to invalidate California's Depression-era restrictions on in-migration. See also JACOBUS TENBROEK, THE CONSTITUTION AND THE RIGHT OF FREE MOVEMENT 8 (1955). In Europe, the free circulation of labor is considered one of the "pillars" of a unified European economy, along with the circulation of capital and merchandise. See Jean-Yves Cherot & Andre Roux, Liberte de circulation des personnes et controle des changes dans la C.E.E., in LIBERTE DE CIRCULATION DES PERSONNES EN DROIT INTERNATIONAL 113 (Maurice Flory & Rosalyn Higgins eds., 1988).

n3 This Piece does not rely on the assumption that the right to move and change residence should be considered a universal right that Russia must protect. HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 192-93 (1996). Resolution of such a universalist-relativist debate, which carries accusations of cultural imperialism, is not necessary to an effective analysis of Russian restrictions on movement, since the Russian government has itself recognized the right in numerous contexts. See infra notes 14, 36. Therefore, freedom of movement is examined here primarily as a legal entitlement ostensibly created by the national government for its citizens.

n4 The propiska has a long history in Russia, dating back to the "permit of passage" edict promulgated by Peter I in 1719. This edict produced the distinction, operative until very recently, between "internal" and "external" passports. The internal passport contained a residence permit allowing the government to keep track of each citizen's official domicile, while the external passport (sparingly distributed during the Soviet period) provided proof of citizenship for foreign governmental authorities. See Kronid Lyubarsky, The Abolition of Serfdom, NEW TIMES INT'L, Oct. 6, 1993, at 10.

The strictness of Russia's residence permit regime varied with the extent of state oppression. While the Bolsheviks were quick to borrow the system from the fallen Romanovs, restrictions on citizens' movement throughout Soviet Russia relaxed gradually after the end of the Civil War, until the labor demands of a budding market economy during the New Economic Plan of 1921-1924 subverted the regulations altogether. See id. at 11. The Bolsheviks' adoption of the residence permit regime occurred despite Lenin's vitriolic criticism of the Czarist propiska regime, in his 1903 essay "To the Rural Poor." See generally V. I. Lenin, To the Rural Poor, in 6 COLLECTED WORKS 367 (1961). "Even today the peasant . . . does not enjoy complete freedom of movement; the peasant is still a semi-serf." Id. at 400. Lenin demanded "that the peasant should be free to go wherever he pleases, to move to whatever place he wants to, to live in any village or town he chooses without having to ask permission from anyone . . . passports should be abolished in Russia." Id. The propiska returned as Stalin's drive to collectivize Soviet agriculture gained momentum. Residence permits, required for all rural dwellers after 1932, essentially "unemancipated" the Russian peasants, attaching them, for the duration of their lives, to a single collective farm. Id. at 60. For more on the utilization of the propiska to achieve economic goals under Stalin and his successors, see BELAIA KNIGA ROSSII [White Book of Russia] 58-67 (V.M. Novitsky ed., 1994).

With certain refinements in 1964 and 1974, the propiska system tightly circumscribed the Soviet citizen's right to move for more than six decades. See generally Simona Pipko & Albert Puciarelli, The Soviet Internal Passport System, 19 INT'L LAW. 915 (1985).

In 1988, some of the individualized restrictions on residence were lifted, and in 1990 the Council of Ministers of the Soviet Union further relaxed the propiska requirements. In October 1991, the USSR Committee for Constitutional Supervision returned the first ruling on the propiska system, holding that "provisions regarding residence permits . . . establishing an obligation for individuals to obtain permission from administrative bodies to reside [or] be employed, . . . as well as [those] establishing responsibility for the breach of these obligations, are not consistent with the USSR Constitution, the Declaration on Human Rights and Freedoms [or] international acts on human rights." See Herbert Hausmaninger, From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court, 25 CORNELL INT'L L.J. 305, 324 (1992). Despite the Committee's optimistic claim that even the most ensconced registration rules would be invalid by January 1, 1992, no significant changes were made in the propiska system before the Soviet Union collapsed. See Vladimir A. Kartashkin, Comparative Constitutionalism: Human Rights and the Emergence of the State of the Rule of Law in the USSR, 40 EMORY L.J. 889, 899 (1991); see also Molly Warner Lien, Red Star Trek: Seeking a Role for Constitutional Law in Soviet Disunion, 30 STAN. J. INT'L L. 41, 87 n.229 (1994).

n5 See Kronid Lyubarsky, Pasportnaia sistema i sistema propiski v Rossii [The Passport System and System of Propiska in Russia], ROSSIJSKIJ BIULLETEN' PO PRAVAM CHELOVEKA, No. 2 (1994), at 18.

n6 The same restrictions hold true for Russians without a propiska today, with the additional withholding of pensions, medical care, and other social services. See The Propiska Legacy: A Source of Woe for Newcomers in Russia, FORCED MIGRATION MONITOR, Nov. 1997, at 1.

n7 Although some financial institutions, such as the World Bank and International Monetary Fund, seem to concentrate more upon economic than legal reform, other benefits may be withheld from Russia should it fail to live up to international standards in protecting its citizens from human rights abuses. See, e.g., Natalia Gurushina, Russia Gets New World Bank Loans, OMRI DAILY DIG. (Sept. 30, 1996) <http://www.omri.cz/bin/OMRI.acgi$ main_search>; Peter Rutland, IMF Loan Back on Track, OMRI DAILY DIG. (Aug. 22, 1996) <http://www.omri.cz/bin/OMRI.acgi$ main_search>. IMF Managing Director Michel Camdessus declared before the June 1996 presidential elections that the IMF does not consider the political effects of its policies, and that only a wave of re-nationalization or some other fiscal regression could derail the loan disbursement. See Peter Rutland, IMF Loan Conditions, OMRI DAILY DIG. (Mar. 29, 1996) <http://www.omri.cz/bin/OMRI.acgi$ main_search>.

n8 See generally Irene Brennan, European Democracy at the Russian Crossroads, CSD PERSPECTIVES, Spring 1996.

n9 A 1994 Council of Europe monitoring mission found in regard to residence registration that "illegal practices which occur on a massive scale with the active support of the local authorities of the most important cities and which moreover affect vital interests of considerable parts of the population far beyond the question of choice of residence itself, are wholly incompatible with the concept of a democratic State based on the rule of law." Rudolph Bernhardt, General Considerations on the Human Rights Situation in Russia, 15 HUM. RTS. L.J. 250, 251 (1994).

n10 The freedom to move and change residence freely is not included in the European Human Rights Convention, but only in an additional Protocol. See Protocol 4 to the European Convention for the Protection of Human Rights, Sept. 16, 1963, art. 2, 46 Europ. T.S. 2. Therefore, Russia could in theory adhere to the treaty as required for membership in the European Union but abstain from signing the Protocol. However, Russia's position in the Organization for Security and Cooperation in Europe, an organization which enshrines the 1977 Helsinki Accords, has been compromised by its limitations on free movement. Further, future CIS economic integration, while as yet at an embryonic stage, would likely force Russia to relax its residence and work restrictions as the result of a proposed common labor market. See generally Anatolii Topilin, Obshchii rynok truda v SNG [The Common Labor Market in the CIS], MIROVAYA EKONOMIKA I MEZHDUNARODNYE OTNOSHENIYA, Dec. 1997, at 104.

n11 The Russian government estimates that since 1992 over 850,000 people have left the country's far North, about seven percent of the total population there. See Phil Reeves, Russians Vote with Their Feet as Chill Economic Wind Blows North, INDEPENDENT, Sept. 3, 1997, at 12. Some regions of Siberia and the Far East, long subsidized by central economic planning in Moscow, now suffer from soaring unemployment and deteriorating living conditions. In these areas, prices are significantly higher than elsewhere, alcoholism runs as high as 80% among aboriginal people, and people reportedly fall ill 40% more often than in the rest of Russia. See id. Meanwhile, Moscow, St. Petersburg, Nizhny Novgorod, and other urban centers are experiencing a shortage of qualified labor in the face of the present expanding industrial base. The shortage forces labor prices up in these cities, while provincial workers continue to receive a fraction of the urban wage.

n12 A recent OECD study provided ample proof that the Russian labor market is suffering from a "slow and hesitant transition," in part because institutional barriers prevent the cross-regional labor re-allocation that might equalize discrepancies in supply and demand. See Douglas Lippoldt & Alex Grey, Labor Dynamics in the Russian Federation: An Introduction and Overview, in LABOUR MARKET DYNAMICS IN THE RUSSIAN FEDERATION 15 (O.E.C.D. ed., 1997). See also Vladimir Gimpelson, Labour Turnover in the Russian Economy, in LABOUR MARKET DYNAMICS IN THE RUSSIAN FEDERATION 31 (O.E.C.D. ed., 1997).

n13 O prave grazhdan Rossijskoj Federatsii na svobodu peredvizheniya, vybor mesta prebyvaniya i zhitel'stva v predelakh Rossijskoj Federatsii [On the Right of Russian Citizens to Freedom of Movement and Choice of Place of Sojourn and Residence within the Borders of the Russian Federation], VED. S'EZDA NAR. DEP. RF I VERKH. SOV. RF, 1993, No. 32, Item 1227, at 2078 [hereinafter O prave grazhdan Rossijkoj Federatsii].

n14 See id. art. 1.

n15 See id. art. 3. The Rules discussed in this article, see infra Part I.A.1.b and note 24, were promulgated in July 1995.

n16 See O prave grazhdan Rossijkoj Federatsii, supra note 13, art. 3. Exactly which "organs" of the Ministry are to be responsible for verification is not specified.

n17 See id. art. 8.

n18 Id. Such situations, controlled by a separate federal law, are not as uncommon as one might think. Much of the North Caucasus was blanketed by such a marshal law decree throughout 1995, and entry into Moscow was tightly controlled during the coup attempt and subsequent assault on the White House in October 1993.

n19 See id. art. 3.

n20 See id. arts. 3, 6; see also Pravila registratsii i snyatiya grazhdan Rossijskoj Federatsii s registratsionnogo ucheta po mestu prebyvaniya i po mestu zhitel'stva v predelakh Rossijskoj Federatsii [Rules of Registration and Deregistration of Citizens of the Russian Federation on the List of Place of Sojourn and Place of Residence Within the Russian Federation], points 4, 5, reprinted in ZAKON, Aug. 1996, at 84.

n21 For examples of European residence permit provisions, see Modified Proposal for Council Regulation amending Council Directive 68/360/EEC on the abolition of restrictions on movement and residence of workers of Member States, 1990 O.J. (C 119) 6, 7; Council Directive on the Right of Residence for Employees and Self-Employed Persons Who Have Ceased their Occupational Activity, 1990 O.J. (L 180) 365.

n22 This practice contributed to the dehumanizing effect of Soviet bureaucracy, crystallized in the Russian epithet, "Bez bumazhki, ty bukashka" ["Without your papers, you're nothing but a bug."]. See Masha Gessen, I Stamp Paper, Therefore I Guess I Am, MOSCOW TIMES, Feb. 12, 1997, at 2.

n23 Rudimentary procedures for registration and de-registration were provided in Articles 6 and 7 of the Law. The Supreme Soviet passed a decree on the same day the Law was passed, obliging the Government of the Russian Federationto develop a permanent system of registration rules by August 1993. See O poryadke vvedeniya v dejstvie zakona Rossijskoj Federatsii "o prave grazhdan Rossijskoj Federatsii na svobodu peredvizheniya, vybor mesta prebyvaniya i zhitel'stva v predelakh Rossijskoj Federatsii" [On the Order of Implementation of the RF Law "On the Right of Russian Citizens to Freedom of Movement and Choice of Place of Sojourn and Residence within the Borders of the Russian Federation], VED. S'EZDA NAR. DEP. RF I VERKH. SOV. RF, 1993, No. 32, Item 1228, at 2081 [hereinafter O poryadke vvedeniya].

n24 Pravila registratsii i snyatiya grazhdan Rossijskoj Federatsii s registratsionnogo ucheta po mestu prebyvaniya i po mestu zhitel'stva v predelakh Rossijskoj Federatsii [Rules on the Registration of Citizens of the Russian Federation and their Removal from the Roster According to Place of Sojourn and Residence within the Russian Federation], reprinted in ZAKON, Aug. 1996, at 84-87 [hereinafter Pravila registratsii i snyatiya].

n25 See Yevgeniy Danilov, Vmesto propiski -- registratsiya [Instead of Permit -- Registration], ROSS. VESTI, Jan. 11, 1996, at 2.

n26 See Pravila registratsii i snyatiya, supra note 24, point 9.

n27 See id. point 12. The Rules indicate that registration authorities "will register [any visitor] within three days from the date of application," barring the listed exceptions. Id.

n28 Id.

n29 In 1996, this "norm" was 18 square meters per person. See Changes in Moscow's Registration System Begin Today, RFE/RL News Release (Feb. 1, 1996) <http://www.rferl.org/nca/news/1996/02/N.RU.96020119202455.html>.

n30 See Pravila registratsii i snyatiya, supra note 24, point 21.

n31 See id., points 12, 21.

n32 See id. point 22.

n33 According to one Russian constitutional scholar, the purpose of the 1993 constitutional reform was to "transform the Constitution from a means used by a relatively small layer of society to usurp the law into a means to legalize the law for all of society and in the name of society's interests and members." BORIS S. EBZEEV, KONSTITUTSIIA, PRAVOVOE GOSUDARSTVO, KONSTITUTSIONNYJ SUD [Governance by the Rule of Law and the Constitutional Court] 40 (1997).

n34 See GENNADY BURBULIS, STANOVLENIE NOVOJ ROSSIJSKOJ GOSUDARSTVENNOSTI [The Establishment of a New Russian Governance] 23 (1996).

n35 KONST. RF (1993) art. 27.1.

n36 The 1992 CIS Treaty provided for visa-free travel within the Commonwealth for citizens of any member State.

n37 Legal and constitutional limitations of the freedom of movement are repeated several times in the Law: "rights are granted in accord with the Constitution" (art. 1); "Limitations on Russian citizens' right to freedom of movement . . . are permitted only on the basis of law" (art. 1); "Right [to freedom of movement] may be restricted in accordance with Russian law" (art. 8). O prave grazhdan Rossijskoj Federatsii, supra note 13, at 2078-80.

n38 William W. Schwartzer, Civil and Human Rights and the Courts under the New Constitution of the Russian Federation, 28 INT'L LAW. 825, 833 (1994).

n39 KONST. RF (1993) art. 18.

n40 Id. art. 17.1.

n41 KOMMENTARII K KONST. RF [Commentary to the Constitution of the Russian Federation] 152 (Institute of Lawmaking and Comparative Law under the government of the Russian Federation ed., 1994).

n42 Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3rd Sess., at 71, U.N. Doc A/810 (1948). Although the UDHR is, in a general international law context, merely declaratory and without binding force, Article 18 of the Russian Constitution seems to imply that it, in theory, has as much legal weight as a statute.

n43 International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 12.1, 999 U.N.T.S. 171, 176.

n44 Id. art. 12.3.

n45 Zakon o prisoedinenii Rossii k Ustavu Soveta Evropy [Law On Russia's Adherence to the Charter of the Council of Europe], Sobr. Zakonod. RF, 1996, No. 9, at 2021.

n46 Rasporyazhenie Prezidenta RF No. 66-rp o pervoocherednykh meropriyatiyakh, svyazannykh s vstupleniem Rossijskoj Federatsii v Sovet Evropy [Presidential Decree No. 66-rp on Initial Measures to be Taken in Connection with the Entry of the Russian Federation into the Council of Europe], Sobr. Zakonod. RF, 1996, No. 7, at 1935.

n47 Obrashchenie v mezhdunarodno-pravovye organy kak sredstvo zashchity prav i svobod cheloveka [Appeal to International Legal Bodies as a Means of Protection of Human Rights and Freedoms], ZAKONNOST', Oct. 1996, at 12.

n48 See infra note 52.

n49 Lane H. Blumenfeld, Russia's New Civil Code, 30 INT'L LAW. 477 (1996) (citing Ross. GAZETA, Feb. 6, 1996). These laws were signed by President Yeltsin on November 30, 1994 and took effect on January 1, 1995, except for Chapter 4 on Legal Entities, which became effective on publication in December 1994, and Chapter 17 on land ownership, which was passed separately by the Duma in 1997. The second half of the Civil Code, which covers contract law, did not enter into force until March 1996. GK RF, 1994.

n50 GK RF art. 150.1.

n51 Id. art. 12.

n52 According to some estimates, there were only 100,000 lawyers in the entire Soviet Union in 1990, less than one-tenth of the number per capita in the United States. Marc Galanter, The Debased Debate on Civil Justice, Address at the National Conference of Bar Presidents (Feb. 1, 1992). Another report put the 1995 total at 28,000 public prosecutors and 20,000 independent lawyers. Groping Ahead, ECONOMIST, Sept. 2, 1995, at 42.

n53 As in other struggles for civil and political rights in the former Soviet Union, local and international non-governmental organizations (NGOs) will carry a heavy burden of action. Events will reveal whether the qualified success of independent activists in drawing attention to and prodding the Russian government to action in the field of environmental cleanup and protection of civilians in the Chechen conflict can be repeated in an area as blandly technical and at once embarrassing and sensitive as the propiska. The OSCE Office of Democratic Institutions and Human Rights sponsored a December 1997 CIS-wide conference on the residence permit question in Kyiv, Ukraine that included former Soviet government representatives, the Council of Europe, World Bank, UNHCR, and a variety of NGOs. CIS-Wide Meeting Scheduled on Residence Registration Reform, FORCED MIGRATION ALERT (Nov. 7, 1997) <http://www.soros.org/fmalert/ 0192.html>. Western human rights and refugee advocacy organizations are finally beginning to expend significant resources on policy advocacy and capacity-building to bring about the end of the propiska system.

n54 Some non-governmental organizations, seeking to inform the public of their rights and even provide legal assistance, have begun to appear on a regional level. One group that boasts progress in the propiska battle is the Nizhny Novgorod Province Society for the Protection of Human Rights. See Nizhegorodskoe obshchestvo prav cheloveka [Nizny Novgorod Region Human Rights Society] (visited Apr. 24, 1998) <http://www.glasnet.ru/ [approximately] hronline/ngo/nopc/index.htm>.

n55 Local political leaders' resistance to changes in the residence permit regime is not entirely undemocratic; one survey of over 5000 Russians in 10 regions across the country found that 41% favored maintaining Propiska in at least some cities, while 46% favored lifting all restrictions on movement. Inga B. Mikhailovskaya, Constitutional Rights in Russian Public Opinion, E. EUR. CONST. REV., Summer/Fall 1995, at 73.

n56 The precariousness of Yeltsin's political position has made him leery of forceful action against valuable allies in the regions. Even where he has demanded compliance with the Constitution, as in Chechnya, the results have been less than conclusive. See generally Elliot Stanton Berke, Recent Development, The Chechnya Inquiry: Constitutional Commitment or Abandonment?, 10 EMORY INT'LL. REV. 879 (1996); Trent N. Tappe, Note, Chechnya and the State of Self-Determination in a Breakaway Region of the Former Soviet Union, 34 COLUM. J. TRANSNAT'L L. 255 (1995). For a brief overview of the problems of federal power-sharing and implementation of court decisions at the regional level, see LAW AND DEMOCRACY IN THE NEW RUSSIA 17-19 (Bruce L.R. Smith & Gennady M. Danilenko eds., 1993).

n57 The complex system of Russian federalism, with 89 constituent "subjects" of various types, was developed in a great hurry. It is therefore not surprising that orders from the center are not always followed to the letter, particularly when those orders come from such a novel and widely unrecognized body as the Constitutional Court. To the American observer, the fledgling judicial body is in a position which brings to mind President Jackson's possibly apocryphal quip, allegedly made after the Supreme Court invalidated a Georgia statute in the 1830s: "Mr. Marshall has made his law, now let him enforce it." Worcester v. Georgia, 31 U.S. 515 (1832). The United States has periodically encountered such intransigence from states, and as recently as Brown v. Board of Education, 347 U.S. 483 (1954), has had to use force to assert federal supremacy.

n58 David Hoffman, Moscow Remains a Perk for Permit Holders, WASH. POST, Jan. 20, 1997, at A19. Another source puts the going rate at $ 5,000; see Reeves, supra note 12. Since official fees are nearly always accompanied by sizable bribes to expedite the registration process, such discrepancies are understandable.

n59 Postanovlenie konstitutsionnogo suda Rossijskoj Federatsii po delu o proverke konstitutsionnosti ryada normativnykh aktov goroda Moskvy i Moskovskoj oblasti . . . [Ruling of the Constitutional Court of the Russian Federation in the Case of the Constitutionality of a Series of Enactments of the City of Moscow and the Moscow Region], Sobr. Zakonod. RF, 1996, No. 16, Item 1909, at 4195.

n60 Arthur C. Helton & Noah Rubins, Recent Changes to the Russian Federal Law on Forced Migrants, 3 PARKER SCH. J. E. EUR. L. 325, 335-36 (1996).

n61 Matt Taibbi, City to Give Facelift to 'Propiska' System, MOSCOW TIMES, Jan. 1, 1996, at 1.

n62 Id.

n63 Id.

n64 Displaced Persons in Southern Russia, FORCED MIGRATION MONITOR, Sept. 1996, at 1-3.

n65 Vremennoe polozhenie o prebyvanii i opredelenii na postoyannoe mesto zhitel'stva v Stavropol'skom krae [Temporary regime on arrival and acceptance for permanent settlement in Stavropol Region], decree of Stavropol Regional Duma passed Oct. 6, 1994, cited in Sobr. Zakonod. RF, 1996, No. 16, Item No. 1909, at 4196.

n66 Id.

n67 Matthew Fisher, In Moscow, It's Who You Know, TORONTO SUN, Dec. 23, 1996, at 11.

n68 Konstantin Katanyan, Nyet propiski, net golosa [No Residence Permit, No Vote], NEZAVISSIMAYA, Oct. 24, 1995, at 2.

n69 Despite many obstacles to their implementation, some evidence exists that the promulgation and diffusion of the Rules have had some positive influence on local residence policy, at least forcing officials publicly to accept the permissive nature of the new system. "The essence of the change," a Moscow city police spokesman explained just after the Rules were passed, "is [that] the new system will simply be one of notification . . . a visitor notifies the police that he has arrived, and is registered." Id.

n70 See Inga B. Mikhailovskaya, Constitutional Rights in Russian Public Opinion, E. EUR. CONST. REV., Winter 1995, at 71.

n71 E.I. KOZLOVA & O.E. KUTAFIN, KONSTITUTSIONNOE PRAVO ROSSII [Constitutional Law of Russia] 201 (1995).

n72 For general background on the migration challenges of post-Soviet Russia, see GIL LOESCHER, FORCED MIGRATION WITHIN AND FROM THE FORMER USSR: THE POLICY CHALLENGES AHEAD (1993); Arthur C. Helton, Forced Migration in the Newly Independent States of the Former Soviet Union, MIGRATION WORLD MAG., Sept.-Oct. 1996, at 33-36; and Helton & Rubins, supra note 60, at 335-36.

n73 Kim Tsagolov, A Russian Official's Analysis of Forced Migration: A Personal Reflection, FORCED MIGRATION MONITOR, Jan. 1998, at 1; Local Government Migration Practices in the North Caucasus, FORCED MIGRATION MONITOR, Nov. 1997, at 4-8.

n74 Cited in JUSTICE DELAYED: THE RUSSIAN CONSTITUTIONAL COURT AND HUMAN RIGHTS (Lawyers Committee For Human Rights ed., 1995).

n75 Displaced Persons in Southern Russia, FORCED MIGRATION MONITOR, Sept. 1996, at 1.

n76 Richard A. Posner, An Economic Perspective on Basic Rights, E. EUR. CONST. REV., Summer 1995, at 77.

n77 Id. at 77-78. "The weak footing of rights in the ex-communist states is typically thought a legacy of the totalitarian past. It may instead be a matter of economics -- of cost, not culture."

n78 See Steven L. Solnick, Federal Bargaining in Russia, E. EUR. CONST. REV., Fall 1995, at 52. The conflict over propiska is symptomatic of the broader tug-of-war presently being played out between the center and regions of Russia. Due to the repeated disobedience of governors in distant regions, the federal government has become increasingly intolerant of even relatively minor deviations from federal directives. Deviation is permitted only when codified in power delineation treaties and circumscribed by center-periphery "horse trading."

n79 See Albert Weitzel, Findings and Observations with Regard to Human Rights of Particular Importance for Democratic Development, reprinted in 15 HUM. RTS. L.J. 255, 262 (1994).

n80 See generally KTO EST' KTO V ROSSII 260 [Who's Who in Russia] (1993).

n81 Zorkin sided with Supreme Soviet Chairman Khasbulatov against Yeltsin in a number of conflicts that led to the storming of the White House in October 1993. See Wendy Slater, Head of Russian Constitutional Court Under Fire, RFE/RL RES. REP., June 25, 1993, at 1. The majority of the court declared Yeltsin's dissolution of the Supreme Soviet unconstitutional. Zorkin then stepped down, five of the remaining justices declared they would no longer decide "political cases," and the institution was disbanded by Yeltsin's decree on October 7, 1993. See Presidential Decree No. 1612, 1 EXECUTIVE ACTS OF THE RF, No. 10, Nov. 17, 1993. See also Alexander Blankenagel, The Court Writes Its Own Law, E. EUR. CONST. REV., Summer/Fall 1994, at 74.

n82 See Antti Korkeakivi, The Russian Constitutional Court and Human Rights, 1 PARKER SCH. J. E. EUR. L. 591, 594; Robert Sharlet, The Russian Constitutional Court: The First Term, POST-SOVIET AFF., Jan.-Mar. 1993, at 1; Julia Wishnevsky, Russian Constitutional Court: A Third Branch of Government?, RFE/RL RES. REP., Feb. 12, 1993, at 1.

n83 See John B. Attanasio, The Russian Constitutional Court and the State of Russian Constitutionalism, 38 ST. LOUIS L.J. 889, 890 (1994).

n84 See Lawrence Lessig, Introduction to Roundtable: Redesigning the Russian Court, Introduction, E. EUR. CONST. REV., Summer/Fall 1994, at 72.

n85 The first post-dissolution case was decided March 25, 1995. See Vestn. Konst. Suda RF, Feb-Mar. 1995 at 3 (regarding the Interpretation of Part 4 of Article 105 and Article 106 of the Constitution of the Russian Federation). See also Z. I. Ovsepyan, Konstitutsionnyj sud Rossii: reforma pravovogo statusa [The Russian Constitutional Court: Reform of Legal Status], SSHA, Aug. 1995, at 96 (giving a comparative analysis of changes in the post-1993 Constitutional Court's functions and powers).

n86 From January 1992 through December 1993, the Constitutional Court received 32,613 petitions. Of these, it handed down decisions in 27 cases (.08%), formal rejections in 92 (.28%), and declined to examine the rest. Refusal to examine was based on jurisdictional limitations in articles 62, 63, 69, 70, and 81 of the July 12, 1991 law on the Constitutional Court. From March 1995 through June 1996, the court received 13,652 petitions. Of these, 36 resulted in decisions (.26%), 190 were rejected formally (1.39%), and the rest were refused on jurisdiction grounds, under articles 40 and 111 of the July 21, 1994 law on the Constitutional Court. Statistiques sur les decisions de la Cour Constitutionnelle de la Federation de Russie [Statistics on the Decisions of The Constitutional Court of the Russian Federation] CAHIERS DU CONSEIL CONSTITUTIONNEL (visited Feb. 14, 1998) <http://www.conseil-constitutionnel.fr/cahiers/ccc1/ccc1rus1.htm>. Lessig and other constitutional scholars see this low review ratio as disastrous in a transitional society so needy of legal clarification. See Lessig, supra note 84.

n87 Some sources claim the Court examined the issue first in the summer of 1994, but this is clearly impossible. The Court handed down no decisions between October 1993 and March 1995, and in its first incarnation rarely addressed human rights cases. For a complete list of Constitutional Court decisions, see Resheniya Konstitutsionnogo Suda Rossijskoj Federatsii, prinyatye s yanvarya 1992 goda po oktyabr' 1993 goda [Decisions of the Constitutional Court of the Russian Federation Handed Down Between January 1992 and October 1993], Vestn. Konst. Suda RF, 1994, No. 6 [monthly].

n88 The statutes examined differed in their provisions, combining various techniques to limit freedom of settlement in the regions in question, as elaborated in Part I.B, supra. All provided for some substantial payment of registration tax or fee, ostensibly for the improvement of local infrastructure.

n89 See Postanovlenie konstitutsionnogo suda Rossijskoj Federatsii po delu o proverke konstitutsionnosti ryada normativnykh aktov goroda Moskvy i Moskovskoj oblasti . . . [Ruling of the Constitutional Court of the Russian Federation on the case concerning the verification of the constitutionality of normative acts of the City of Moscow and Moscow Region . . .], Sobr. Zakonod. RF, 1996, No. 16, Item No. 1909, at 4195.

n90 Id. at 4199.

n91 Id. at 4202.

n92 Id.

n93 See Osoboe mnenie sud'i Konstitutsionnogo Suda Rossijskoj Federatsii Baglaya M.V. po delu o proverke konstitutsionnosti . . . [Concurring opinion of Constitutional Court Justice M.V. Baglai in the case concerning the verification of constitutionality . . .], Sobr. Zakonod. RF, 1996, No. 16, Item No. 1909, at 4207.