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Russia’s International Obligations

As noted above, Russia is a member of the Council of Europe and a party to core regional and international human rights treaties whose provisions are directly relevant to the subject of this report. These include the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols,¹the European Convention on the Prevention of Torture and Inhuman and Degrading Treatment or Punishment,²the International Covenant on Civil and Political Rights (ICCPR),³ the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture),⁴ and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).⁵ These treaties provide for the protection of basic civil and political rights and specific guarantees relating to treatment and conditions in custody for those deprived of their liberty.

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles) is another instrument relevant for the evaluation of Russia’s actions against Georgians.⁶ The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has also established norms regarding conditions of detention and the treatment of detainees, as described in its annual reports.⁷

Arbitrary or unlawful detentions

The discriminatory and often arbitrary nature of the detentions of Georgians violated Russia’s obligations under international law and the Russian constitution. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) declares that “No one shall be subjected to arbitrary arrest or detention [or] be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.”⁸ Detention is considered “arbitrary” if it is not authorized by law or in accordance with law. It is also arbitrary when it is random, capricious, or not accompanied by fair procedures for legal review. Article 5 of the European Convention on Human Rights (ECHR) also prohibits arbitrary detention.⁹

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), places particular emphasis on states’ obligations to prevent discrimination and guarantee fundamental rights, such as freedom from arbitrary or illegal detention, equally to all. Under article 5 states must “undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights [including,] [t]he right to equal treatment before the tribunals and all other organs administering justice and [t]he right to security of person…”¹⁰

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention) also provides similar protections against arbitrary detention. According to article 16, “Any verification by law enforcement officials of the identity of migrant workers or members of their families shall be carried out in accordance with procedure established by law” [and] [m]igrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.¹¹ Russia has not yet ratified the Migrant Workers Convention.¹²

Arbitrary or unlawful expulsions

As a party to the protocols of the European Convention on Human Rights, Russia has very specific obligations in relation to the rights of non-Russian national residents in the event the government wishes to expel them. Article 4 of protocol 4 sets out the unambiguous prohibition on the collective expulsion of foreigners, while article 1 of protocol 7 provides particular safeguards relating to the expulsion of foreigners legally residing in a country, and requires that decisions on expulsion be taken “in accordance with law” and that a foreigner have the right to submit reasons against his or her expulsion; have his or her case reviewed, and be represented for these purposes before the competent authority.¹³

While the basic guarantees in protocol 7 extend only to those “lawfully resident” in the country, the European Court of Human Rights has understood “lawfully resident” to encompass those who may have fallen out of status but who had been lawfully admitted onto Russian territory in the first instance for residence purposes, and who in all circumstances have a legitimate expectation to be allowed stay in the country. Under the ECHR, with the exception of extradition, any measure compelling a non-national’s departure from the territory where he was lawfully resident constitutes “expulsion.”¹⁴

The almost complete absence of respect for due process rights as set out in this report demonstrates how the Georgians expelled from Russia in October and November 2006, who were entitled to the rights guaranteed under protocol 7, were never allowed exercise them. While many expelled may technically have had a judicial decision ordering their expulsion, the manner in which those decisions were reached (some in group trials), the lack of representation and capacity to mount a proper case against the expulsion, and the fact that many were effectively denied the right to appeal, points to Russia’s failure to comply with its ECHR obligations.