COMMENTARY
by Gordon M. Hahn
In January of 2010 ROPV readers were informed of the scale and scope of President Dmitrii Medvedev’s plans for overhauling the massively corrupt Ministry of Internal Affairs (MVD) (see Gordon M. Hahn, “Medvedev’s Thaw Hits at Russia’s Lack of Rule of Law,” Russia Other Points of View: Russia Media Watch, 12 January 2010).
The first stage of that process is now well underway. Russia’s new law “On the Police,” the first step of the MVD reform, was signed by President Medvedev earlier this month and comes into force on March 1st. Other stages of the reform will include the reform of the police training and education system which also includes training on human rights. There will be a complete ‘attestation’ or ‘recertification’ of all MVD personnel with the goal to reduce the most corrupt and incompetent MVD policeman and officials; a procedure codified in this law as well (Article 54.3-5). Also, President Medvedev is to issue a “Decree on Issues Concerning the Assessment of the Work of Russia's Interior Ministry Agencies,” which will apparently be a performance review of departments and other aspects of the MVD system. Below we assess the new law in terms of its value as the new fundamental law governing the MVD, and as an indicator of progress in the overall reform process begun by President Medvedev and Prime Minister Vladimir Putin.
The most important advances in the law are the introduction of several measures to protect individuals from undue violations of citizens’ rights by the police. The first key element is the introduction of elements of the so-called Miranda rule. Citizens must be presented to court by the police for a detainment hearing within 48 hours of their detention or be released (Article 14.1 in the new law). This was included in a different law as amended under Medvedev. Police must now inform detainees of their right to legal defense, right to translation services, right within three hours of detention to telephone their relatives or close ones of their detention and their location, and the right to refuse to answer questions from the police (Article 14.3, 14.5 and 14.7). In the cases of underaged detainees, police must immediately inform relatives of the detention (14.8). A detention protocol showing the time, place and reason for detention, a record showing that the detainee’s relatives or close ones were informed of his detention, and this must include the record of an examination of the detainee both before and after his detention in a police station holding cell before transfer to a jail must be signed by the detainee and the arresting officer (Article14.14-16).
When interacting with citizens, police now must begin by identifying themselves by name, position and title, presenting proof of these identifications, and then reporting the reason initiating the interaction if police, in fact, initiated it. If a citizen initiated the interaction, then police are required to address the inquiry or request (Articles 5.4.1 and 5.5). Also, there is now a requirement for police before they enter a private residence to inform citizens of the reason for entering except in for cases where “causes immediate danger for life or health of citizens and police personnel, or may entail other negative consequences” (Articles 15.1-2), and there are other detailed rules and restrictions regarding this authority (15.5-7).
The law also specifies some new limits on the use of force by police and the kinds of coercive means they can employ and in what situations they be employed (Articles 19-23). The law bans the use of “torture, violence, or other treatment that is cruel or demeaning to Human dignity” (Article 5.3). Any limitations on citizens’ rights or freedoms required in carrying out police duties must cease immediately if they are deemed to be in violation of the law, or if the police action is determined to be possible to implement without resort to limitations of citizens’ rights and freedoms (Article 5.2). Police must warn citizens that they will apply deadly force or other coercive measures before employing them unless it puts their own life in danger (Article 19.1). This stipulation will have implications for the conduct of counter-insurgency operations in the North Caucasus by putting the pre-emptive use of force out of reach.
Readers may recall that in off-the-cuff remarks last year Prime Minister Vladimir Putin said that if demonstrators refused to obey police instructions then they should expect to be hit in the head by police. Such a remark would now constitute a recommendation to police that they violate the law they are sworn to uphold. According to Article 22.2.1 of the new law, the police are specifically forbidden to hit citizens with nightsticks on the head, neck, stomach, genitals or the heart and clavicle areas in situations when they are allowed to use nightsticks as sanctioned by the law such as when citizens resist arrest or demonstrate violently (Article 22.2.1).
In addition to the above mentioned recertification of all MVD personnel, there are several other measures aimed at improving the quality of MVD personnel. The law stipulates new vetting procedures for prospective hirees including psychological, drug, and alcohol dependency testing (Article 35.4). Police officers and officials are required to undergo periodic training in their knowledge of the constitution and federal laws (Article 27.1.1).
Anti-corruption measures are also included in the new law. Police now must provide information in accordance with anti-corruption and other laws on their income, property, and obligations of a material character and that of their spouses and underaged children (Article 27.1.10). Police may not join political parties and cannot fulfill their duties with reference to citizens’ ethnicity, religion, gender, place of residence or any other characteristic, and they must also carry out their duties with proper respect for separate ethnic, religious or other local customs (Article 7.1-3). There are more detailed and demanding requirements made of police regarding proper conduct, including reporting any conflict of interest to superiors that might relate to a police officer’s fulifillment of duties (Article 27.1.13). Police must avoid any action that might discredit the honor of the MVD or “create any doubt regarding the objectivity or bring harm to the authority of the police” both on duty or off (Articles 38.1.12 and 7.4).
The law also stipulates a practice that has already begun in a few MVD branches for the provision of public monitoring of police activity and its compliance with Russian law – that is, the formation of “public councils” for the MVD at various levels “on the basis of voluntary participation of Russian citizens and public association and organizations in their activity in accordance with a system established by the President of the Russian Federation” (article 9.7-8 and 50.4). It also charges the federal Public Chamber with the same oversight function (Article 9).
CONCLUSION
Russian human rights groups have generally praised much about the law but expressed concern that it is often declaratory in character and therefore has “no prospect of being applied in practice” (Gregory L. White, “Russia Enacts Police-Agency Overhaul,” Wall Street Journal, 8 February 2011). This appears to be an underestimation of the law’s power, since the law itself indicates that any violations of laws such as this one by police officers or officials are grounds for their dismissal (Article 35.3.4) and that they can be held legally and materially responsible for violations of the law or citizens’ rights (Article 33.1-3).
There are many clauses of the law, including some of those mentioned above, that will be given more specific content through follow-up laws and presidential decrees, as stipulated in clauses of the law itself. Therefore, the reform’s shortcomings will probably be addressed over time making the law even more effective in restraining police. Medvedev promised continued refinement and improvement of the law. He has followed exactly this approach in pushing through anti-corruption legislation, which has been amended three times since its first passage. Each time the law has been slightly strengthened requiring more stringent property reporting requirements for state agents and punishments for those who violate corruption law.
Thus, the MVD law and the reform process follows the path of very gradual but persistent reform we foresaw when we predicted the Medvedevian thaw three years ago (see, for example, Gordon M. Hahn, “Is A Russian ‘Thaw’ Coming?,” Russia: Other Points of View, 18 April 2008; Gordon M. Hahn, “More Signs of a Possible Thaw Under Medvedev,” Russia: Other Points of View, 2 June 2008; Gordon M. Hahn, “Russia and Its Early ‘New Political Thinking’,” Russia Other Points of View, 27 May 2010; Gordon M. Hahn, “The Thaw Continues,” Russia Other Points of View, 9 November 2010; see also Gordon M. Hahn, “Medvedev, Putin, and Perestroika 2.0,” Demokratizatsia, Vol. 18, No. 3, Summer 2010, pp. 228-259). Of course, any law in Russia has less immediate impact than do laws adopted in advanced democracies, since there is a weak tradition of observing the law among Russian citizens and officials alike. Nevertheless, Russian law does constrain some officials and citizens. Although more needs to be done, the law and its adoption mark a significant step in the direction of democratizing the MVD and in moving Medvedev’s liberalization program forward.
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