MOSCOW'S REGISTRATION AND REFUGEE POLICY: A STATE WITHIN A STATE10

Registration for Temporary Stays

The Russian government allows Moscow very broad discretion in the implementation of federal laws and programs.11 In registration and refugee policy, Moscow conducts itself as a state within a state in ways that violate human rights guaranteed by the Russian constitution and international instruments which Russia is obligated to uphold.

Moscow exceeds its authority in interpreting federal rules on registration for visits, Resolution 713,12 in three ways. First, whereas federal rules allow for "citizens of the former USSR" to register under the same terms as Russian citizens,13 Moscow rules set out a dual registration system, one for Russian citizens (Resolution 1030-RM)14and one for CIS citizens, who do not require a visa for travel to Russia. Until July 9, under Resolution 637-RM,15 citizens of CIS countries could register for only forty-five days at a time, which required them to repeat the onerous process of extending their registrations, if they desired to do so. They also had to pay a fee of 10 percent of the minimum monthly salary per day; hence, if a CIS citizen wished to enjoy the right to stay in Moscow for a full six months, he or she had to pay 1.5 million rubles, or about $259.16 City and regional regulations for registering Russian citizens, Resolution 1030-RM, required neither of Russian citizens. Under a new law adopted on July 9 by the Moscow City Council,17 CIS citizens need to register only once for a stay of up to six months, eliminating the bureaucratic obstacles involved in extending registration. The fee dropped to three minimal monthly salaries, or 250,000 rubles (about $43.)18

Second, the federal rules state clearly that the only fee owed for registration is the nominal fee for state transactions of one percent of the minimum monthly salary ( or about $1.25). Resolution 1030-RM, in its amended version, abides by this rule, but internal Moscow City Department of Internal Affairs (GUVD) instructions introduced a new fee. In Telegram 10-32, the GUVD requires all visitors to Moscow who stay with friends or relatives-and hence do not pay rent-to pay 250,000 rubles "rent" if they wish to stay longer than forty-five days. This extra fee is additional to the flat registration fee that CIS visitors pay, and is credited to the account of Moszhilservis, which provides electricity, heat, gas, sewage and maintenance for Moscow housing.

Third, whereas the federal rules allow the visitor three days in which to register for stays of ten days or longer, Moscow requires all visitors to register within twenty-four hours for stays of three days or longer.

Fourth, whereas the federal rules merely state generally that sanctions for violations of the registration system are those "that are in accordance with Russian Federation legislation [paragraph 8]," Moscow rules introduce a sanctions regime that Human Rights Watch believes go beyond the boundaries of necessity for notification and constitutes a discriminatory regime of exclusion, intolerance and arbitrary exactions. Moreover, sanctions for Russian citizens differ from those that apply to CIS citizens. For Russian citizens who are first-time violators, sanctions range from a warning to a fine of up to five minimum monthly salaries (413,000 rubles, or about $72); repeat offendersare punished by a fine of up to fifty minimum monthly salaries for repeat offenses.19 Under the July 9 city law, sanctions for first-time violators from the CIS range up to a fine of five minimal salaries; repeat offenders are punished by a fine of up to twenty minimal salaries, or 1.7 million rubles (about $288).20 In practice, the legal provision for fines establishes a basis for police routinely to demand payment of refugees, immigrants and dark-skinned visitors in which the police themselves appear to be the sole benefactors.

The federal rules limit temporary stays to six months, a period that may be extended only in "exceptional" case of serious illness; they do not provide argumentation for the choice of this six-month period.21 Notably, the Resolution is silent on the issue of repeated stays. Moscow abides by this rule22

Under the old rules-Resolution 637-RM-CIS citizens who repeatedly violate registration rules could be expelled from Moscow to their place of residence, a sanction that may still be enforced.23 Resolution 637-RM provided no criteria for determining in what circumstances expulsion rather than a fine is to be applied as a sanction.

Registration for Permanent Residence

Federal rules on permanent residence, also set out in Resolution 713, are rather broad and set out a procedure similar to that for short visits.24 However Moscow rules, in city Resolution 1030-RM, limit new permanent residencepermits to, among others, those who have purchased a dwelling or those who have close relatives25 with whom they can co-habit. In most circumstances one may not, for example, obtain a permanent residence permit on the basis of a long-term lease contract.26 These rules make it virtually impossible for average Russian citizens and CIS citizens to obtain permanent residence permits for Moscow.

In 1996 the Constitutional Court of the Russian Federation ruled unconstitutional27 the prohibitive registration fee-500 minimum monthly salaries-for permanent residence in Moscow that was established by a 1994 Moscow city law.28 The subsequent Moscow Region law,29 adopted after the court's 1996 ruling, which established a fee of 300 minimum monthly salaries (more than 22.5 million rubles or $3,900) for a residence permit, was ruled unconstitutional by the court on June 2, 1997,30 which ordered the Moscow Region government to cancel the fee. Notably, in the latter decision the court not only found the law unconstitutional on the grounds that the fee was excessive, but it rejected the premise of the law, that a fee could be collected to compensate the regional budget for infrastructure expenses.

The Moscow city government cancelled the fee in December 1996,31 but according to Civic Assistance, Russia's foremost refugee rights organization, registration authorities in the city of Moscow continue to attempt to extract enormous registration fees from those whose applications for permanent residence were otherwise in order. Moscow city courts routinely order the authorities to register the applicant.32

Evaluation

Even with three improvements,33 Moscow's implementation of federal rules places administrative and financial burdens on individuals wishing to register impairs their right to freedom of movement especially for short visits. In addition, the existence of separate rules for Russian citizens and citizens of CIS countries who may travel and reside in Russia without a visa discriminates against the latter.

As the rules now stand, as many barriers prevent one from securing registration for a permanent residence permit in Moscow today as existed under the Soviet-era propiska system, and they contravene the right to freedom of movement enshrined in Russian and international law. The Russian constitution unconditionally guarantees freedom of movement in article 23 (1), which states: "everyone who is lawfully within Russian Federation territory has the right to move about freely and to chose places for temporary stays and permanent residence." The International Covenant on Civil and Political Rights, to which Russia is a party, provides in article 12 (1): "Everyone lawfully in the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." Article 12 (3) provides that these rights shall be subject to no restriction, "except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant."

Human Rights Watch/Helsinki recognizes that governments may need to restrict population in urban areas as part of urban planning in the interests of public health and public order. But such restrictions must be provided by law and necessary, that is, narrowly tailored to place no greater burden on the right to freedom of movement than is required by the interest to be acheived. To the best of our knowledge the Moscow city and region governments have not fulfilled the obligation to meet these criteria.34

In this context, the registration requirements place an undue burden on both freedom of movement and freedom to choose a residence in three ways. First, the six-month limitation on visits is arbitrary, i.e. not rationally related to interests like public health and the like. Second, for temporary stays in the housing sector (i.e., not in hotelsor sanatoria and the like), the type of registration sought by about half of all visitors, the registration procedure itself is so time-consuming as to present an unreasonable burden. One must first stand in line at the local housing office, then do so at the police station, to await the approval of the head of the passport department. Since police stations do not accept cash payments and personal checks are not in use in Russia, one must then stand in line at a bank topay the registration fee, then return to the station with the bank receipt and await the registration document. The housing commission and the police station's passport department often operate on limited schedules, which makes the process -which can take up to an entire day to complete-even more awkward.

Finally, the requirement of gaining the written consent of all adults who have a propiska for that dwelling is burdensome and allows private individuals a veto over an important right for reasons that may be entirely unrelated to public health and other legitimate government interests. No doubt this rule foresees such living arrangements-particular to Russia-as a divorced couple that is forced, due to the shortage of affordable housing, to continue to cohabit. Yet it does not foresee situations whereby one such adult household member is away, out of the country, or otherwise indisposed.

Furthermore, Moscow's current requirements are discriminatory. The Russian constitution (article 62) enshrines the equality of rights of foreigners legally within Russian territory with those of Russian citizens. In addition, the ICCPR provides:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The dual fee and sanctions regime35 for Russian citizens and non-Russian citizens-albeit mitigated by the July 1997 law- blatantly violates this principle of non-discrimination.

The introduction to the July 9 law on registration apparently attempts to condition the enjoyment of such rights by referring to the Russian constitution's article 72, which places under the joint authority of the federal and regional governments a range of things, such as the protection of human rights and freedoms; use of natural resources; education; housing law; and other areas. It also refers to article 62 (3) which states "foreign citizens and stateless persons enjoy the same rights and bear the same obligations as citizens of the Russian Federation, except where established otherwise in Federal Law or International agreements . . . " Since Moscow laws are clearly not federal laws or international agreements, the dual fee regime is entirely unconstitutional.

In 1995, the U.N. Human Rights Committee, in reviewing Russia's fourth periodic report, recommended that the propiska system be abolished in all of Russia's regions. It commented:

Although federal law has provided for the abolition of the propiska system, the Committee is concerned that at regional and local levels, the residence permit system is still applied in practice, thus violating not only the [Russian]Constitution but also article 12 of the Covenent. . . The Committee recommends that the abolition of the propiska system be carried out all over the country without exceptions.36

The World Bank has also criticized the propiska system, albeit not on human rights grounds.37

Presumably one of the greatest barriers to widening the scope of individuals entitled to permanent residence permits is that the permit continues to be coterminous with ownership. Many Muscovites who obtained their Moscow propiska during the Soviet era now own their apartments; those who have not privatized their apartments, enjoy some of the same rights as ownership, save the right to sell the apartment or to leave it as an inheritance. In most cases their children automatically receive the right to reside in the apartment, and such families remain on waiting lists for improved municipal housing or additional, subsidized municipal housing, should the need arise. Human Rights Watch/Helsinki believes that in order to more fully guarantee the right to freedom of movement and choice of residence, the notion of permanent residence for those who are newcomers to Moscow must be decoupled from the notion of ownership and rightful (within Russian civil law) claims to free or subsidized municipal housing.

The 1993 Law on the Right of Russian Federation Citizens to Freedom of Movement, Choice of Place of Stay and Residence within the Territory of the Russian Federation effectively replaced propiska with a system of registration for temporary stays and permanent residence, which was to have the purpose purely of notification. The federal government's Resolution 713 was intended to implement this law.