Statutory Discrimination

Photo by Ute Weinmann

International Migrants Day is celebrated in December. A few days before it, on December 4, members of the [Russian] Human Rights Council (HRC) spoke about migrants’ rights, expressing their concern that the “flow of migrants creates well-known problems, in particular, the formation of ethnic enclaves, which poses a dangerous threat to the sociocultural balance in some Russian cities.” As examples of these “well-known problems,” HRC head V.A. Fadeyev cited migrants’ ability to work up to 60 hours a week (“advantageous for employers, but violates the Labor Code”) and some families’ reluctance to send girls to school (which Fadeyev believes is a violation of the Family Code). But he was most concerned that not everyone who becomes a Russian citizen registers for military service, complaining that “Failure to follow the law violates the rights of both migrants and Russian citizens.”

But what did Fadeyev mean by “Russian citizens”: those who become citizens or those who were born citizens? Probably the latter, although it’s not clear what exactly violates their rights, even if they don’t register for military service right away. Meanwhile, military registration carries major risks for new Russian citizens, i.e., yesterday’s migrants. For example, on December 15, a Chelyabinsk court stripped two brothers, aged 21 and 24, of citizenship because they failed to register for military service as soon as they received their Russian passports. The court interpreted this failure as “knowingly providing false information.”

An all-out hunt is on for migrants from Central Asian countries and the South Caucasus who were reckless enough to become Russian citizens (in the hope, of course, of making it easier for themselves to live and work in Russia). Raids at markets, mosques, and meetings of the diaspora are now common. It is becoming more and more common for these antimigrant raids to involve not just police officers, but also representatives of military committees and other security agencies. The holders of new Russian passports who are caught are issued military summonses on the spot or even immediately taken against their will to military units.

On International Migrants Day, Moscow’s Lyublinsky Court ruled to expel from Russia 22 foreign nationals who on December 16 attempted to take back from the police a migrant from Tajikistan who did not comply with demands to show his documents. The court sent the perpetrator to a pretrial detention center (even though he was having an epileptic seizure at the time of his arrest), and another 51 people were sentenced to administrative arrest. This kind of mass action on the part of labor migrants against a police raid speaks to the growing tension among foreign workers, their rejection of police actions, their fears of being forced to fight, and their confusion and frustration.

At the same time, the Russian economy needs migrant workers more than ever before (even though the economy would not have been able to exist over the past 30 years without their labor). Even Putin admitted in response to a question from Fadeyev during a discussion with the HRC that “everything that is happening in this area is primarily dictated by the economy and the shortage of workers.” However, Putin said vaguely that “to be honest, we put the interests of Russian citizens first and foremost” and “as a civilized country, we must also ensure the rights” of migrants.

There are proposals to solve the problem of integrating Central Asian migrants by ramping up Russian language instruction for those who want to work in Russia (including by setting up Russian schools and classes in donor countries). HRC member E.V. Smoroda, the children’s rights ombudsperson for Ulyanovsk Oblast, was particularly insistent on the need to develop special school programs for children from migrant worker families in Russia whose knowledge of Russian is not strong enough. She even said that the law “On Education” must be amended to include special conditions for teaching migrant children, whom she considers “learners with special educational needs for whom special conditions must be created.” Among these conditions, Smoroda called for the creation of “special bridging classes” for non-native speakers, who are often called children for whom “Russian is not the native language.” Even though we have no objections to Smoroda’s calls to focus on methodological support for teaching Russian to schoolchildren who don’t know the language well, the idea of changing the federal education law for this and creating separate classes is worrying. In many countries throughout the world, a significant number of children attend school without knowing the local languages well, since they speak different languages at home, so the question of how to help draw them into the educational process is relevant everywhere. Schools in EU countries attended by large numbers of migrant children are generally given the opportunity to work on the side with these children and engage specialists (speech therapists, language teachers, and so on) to help them. None of this, however, depends on any education law (which is generally applicable to everyone). Instead, these changes are made to local education plans and strategies with account for the particular situation.

The experience of creating separate classes for children with “special educational needs” exists in Russia, where the law does not envisage anything of the sort, but the practice has long been standard. In areas where minorities are densely concentrated, for example, near so-called tabor or Roma settlements, schools have long had separate classes for children based on ethnicity, origin, or language. Education in these classes for “children with special educational needs” is always worse (not better!) than average, a subject ADC Memorial has repeatedly addressed in human rights reports and other materials.

This kind of division of classes effectively leads to segregation and discrimination, which is directly banned by that same law “On Education” (and it would be better not to amend it, so that it at least preserves the right to protection from discrimination on the basis of ethnicity, language, and so forth). Unfortunately, however, discrimination is generally not given much attention in Russian laws, which is something the relevant UN committees (the Committee on the Elimination of All Forms of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women) have repeatedly pointed out, calling on the Russian government to develop a comprehensive antidiscrimination law. Aside from the Constitution, the law “On Education,” and the Labor Code, a ban on discrimination is only mentioned in current Russian law in Article 136 of the Criminal Code, which imposes criminal liability for “violation of human and civil rights, freedoms and legal interests on the basis of gender, race, nationality, language, origin, property or official status, place or residence, attitude to religion, convictions, or affiliation with public associations or any social groups, committed by a person through their official position.” This article is rarely applied. For example, it has never been used against the principals of schools that segregate Roma children, effectively depriving them of the right to a full-fledged secondary education, even though the parents of such children have attempted to sue education authorities in court.

Russia has never adopted a comprehensive antidiscrimination law, but it did decide to change this half-forgotten Criminal Code article by adding in the most unexpected way possible a ban on Russophobia, which implies various activities by foreign officials. To this end, there is a proposal to introduce Article 136.1 to the Criminal Code. This article criminalizes (and the government committee has already supported this bright initiative) “discriminatory actions committed outside of the Russian Federation…in relation to Russian citizens, stateless persons permanently residing in Russia, or compatriots who are not Russian citizens.”

During the HRC’s December meeting with Putin, K.V. Vyshinsky earnestly begged the head of state for help banning “Russophobia,” asserting that it has transformed into an “ideological program of discrimination and the effective alienation of our compatriots, citizens of the Russian Federation, our fellow nationals – of everyone who associates themselves with Russia and the Russian world, broadly speaking.”

The definition of discrimination as the “alienation of compatriots” that associate themselves with the “Russian world” is a new one in the area of law. Not to mention the idea of the Russian Criminal Code banning actions outside of Russia, especially banning politicians and public figures from criticizing the “Russian world,” imposing sanctions, condemning aggression, and demanding observance of human rights…

Such legislative innovations make it very difficult to continue calling for the protection of the rights of foreign nationals, migrants, and minorities in Russia itself; for the development of a true, functional antidiscrimination law; or even for the observance of the few existing antidiscrimination norms, such as those in the law “On Education,” in the harsh “Russian world.”

Stefania Kulaeva,
first published on the Radio Liberty blog