Natalya Tsymbalova. Thermidor for Citizen Ivanova

Thermidor for Citizen Ivanova
Natalya Tsymbalova

Publication date: February 20, 2004

In connection with the recent appointment of Vladimir Lukin to the post of Commissioner for Human Rights in the Russian Federation, interest in this institution, its political meaning and place in the Russian state-legal system has somewhat intensified in Russian society and the establishment. This circumstance in itself cannot but rejoice, since the mysterious word “ombudsman” (or “ombudsman”) usually only causes bewilderment even among fairly politically advanced people, not to mention ordinary citizens.

One of the attempts to conceptually consider the role and prospects of this institution is the article by Yegor Kholmogorov “ From the Ombudsman to the People's Tribune .” The author, from a certain political position (we will conditionally designate his approach as anti-liberal), analyzes the state of human rights activities in Russia in general and the institution of the ombudsman in particular, and on the basis of this proposes to abandon the latter in favor of the institution of “tribunes of the people”, borrowed from the practice of the Roman Republic of the 5th century. BC.

However, it is worth paying attention to a number of serious erroneous premises on which the system of reasoning is built and which cast doubt on the conclusions drawn.

Firstly, this is an error in terminology: E. Kholmogorov calls the Ombudsman the “representative of the President” of the Russian Federation for human rights. He is not alone in this, and this name periodically appears in the pages of the press. Here we could talk about the fact that for people who claim the status of rulers of thoughts and put forward various kinds of projects for large and small reforms in the state, it would be a good idea to first take a closer look at the Constitution and those laws, the scope of which they want to reform . But it's not only that. This common mistake is also evidence that the institution of the ombudsman in Russia has not yet fully taken root, has not actualized all the potential inherent in it and, unfortunately, remains a fifth wheel in the cart of our statehood. And it’s not for nothing that when V. Lukin was appointed, everyone was talking about the fact that this position was a sinecure and a way to find employment, another sop to the right from the presidential administration.

However, E. Kholmogorov is mistaken in presenting this fact as a trend: human rights protection, they say, “is perceived as a sinecure for representatives of liberal parties and as a type of activity that, by definition, cannot interest anyone except a person with liberal and dissident convictions.” This is not true. There are simply no such facts. Let us recall at least the member of the Communist Party of the Russian Federation Oleg Mironov, who previously worked in this post . And for the liberal Sergei Kovalev , this was by no means a sinecure , but hard work, an important mission, regardless of how one treated him. In addition, in Russia, in fact, human rights commissioners already work in 27 regions, and many are eager to be appointed to this post. Most often, if this is a sinecure, it is exclusively bureaucratic, and not at all party-liberal.

This concerns factual errors. But conceptual errors are much more important. The main idea of ​​the author is that “human rights protection in Russia has been reduced to a situation where a human rights defender is, in fact, an anti-state saboteur - most officials perceive him as such, and this is how he himself perceives his work.” Perhaps, in the eyes of the former, this is indeed the case, but they are interested parties, because the ombudsman is called upon to catch flaws in their work and help eliminate them. And this, you know, is not pleasant for everyone. No one would take seriously a statement like “the police are a harmful organization, because the majority of criminals think so . ” But here, for some reason, a similar thesis passes with a bang. No, I do not want to say with this analogy that all or even most officials violate human rights, but no one will deny that this phenomenon in Russia is systemic in nature. So E. Kholmogorov writes that today in Russia “ all rights have been trampled upon.” And how does one fit in with the other? All rights are violated, but human rights activists are classified as pests - where is the logic here?

To talk about “anti-state activities” of human rights activists means, first of all, to confuse the state and the state apparatus. Such a substitution of concepts is still understandable in the mouth of an official who considers every own sneeze a matter of national importance and accepts any attempt to counteract as an undermining of state foundations, but in the mouth of an analyst it sounds, to put it mildly, rather strange.

Also completely unfounded is the author’s assertion that in modern Russia human rights “are trampled upon more comprehensively and intensively than ever before in the history of Russia (with the possible exception of the period of civil wars and unrest).” A categorical statement that social rights were not violated in 1937 does not stand up to criticism at all. Interestingly, a ban on strikes, slave labor of prisoners, work on collective farms for workdays , etc. - This is a violation of what rights? Further, E. Kholmogorov writes: “Then they beat, but they fed. Now they don’t feed, but they still beat” - the perception of the accomplished change by those who quite clearly remember “then” and have fully felt the delights of “now” can be reduced to this formula. . This hyperpaternalistic, marginal view of life is offered to us as the foundation for political constructions! As is the case with "most officials" , the foundation is more like a swamp.

Of approximately the same quality is the author’s analysis of the “basic myth of modern human rights protection,” which boils down to the fact that for a human rights activist, the state with any of its structures and institutions is an original and exclusive evil that must be fought by any means, and a human rights activist does not become a terrorist-revolutionary only because he doesn’t know how to “blow up bridges, derail trains, plant bombs in cafes, kill police officers,” but only knows how to write petitions and complaints - there is no essential difference between the first and second, but only in methods and style. While human rights in this “paradoxical socio-philosophical and [quasi-]legal system that puts human rights at the forefront” , criticized by the author, are “abstractly attributed to the individual, not secured by any institutions, but not limited by any institutions , birthright."

Such an assessment speaks, if not of a conscious distortion, then of a clear misunderstanding by the author of both modern liberal thought and specific human rights practice. Let’s say that someone has the described approach, but this is again a marginal phenomenon that does not reflect the generally accepted view and, even more so, a certain “dogma of human rights.” Restrictions on rights, as well as corresponding institutions, not only do not contradict the human rights concept, but have developed hand in hand with it (take, for example, the same institution of ombudsman). And the state with its institutions is not at all an abstract ontological evil, essentially hostile to man, but, on the contrary, is an important and necessary tool for the realization and protection of his rights. Moreover, without the state their provision is simply impossible. Another thing is that the state tends to acquire a self-sufficient significance, and then and only then does it become an “enemy” - when it ceases to meet its task of creating an environment for the realization of human rights and freedom. These are such obvious things that it’s even strange to explain them.

Another thesis of the author is to attribute to human rights activists the following “compromise between dogma and reality” : as if “human rights” are recognized not as total and unconditional “things in themselves”, but as principles guaranteed by international law and the international community." Such a characteristic, in addition, which simply does not correspond to reality, wrongfully transfers the problem to a purely positivistic plane and does not take into account the historical development of the concept of human rights, their division into “generations”, etc.

In addition to ideological ones, the author also throws practical accusations at human rights activists, which are also clearly far-fetched: “Not a single Carnegie foundation will give money to ensure that citizen Ivanova from the city of Maloyaroslavets is not evicted onto the street from her apartment. But for the liberalization and humanization of housing legislation - as much as you like." This is wrong. I can’t speak for the Carnegie Foundation (it does not deal with human rights programs), but other foundations give grants, including for such causes as protecting the rights of citizen Ivanova. A statement to the contrary indicates ignorance of current practice. As for the second part, is it really necessary to prove that the “humanization of legislation” is directly related to the observance of the rights of very specific people? This is essentially the same work, only at the systemic level, when protecting rights requires changing legislation, and not just private actions.

I do not at all claim that human rights institutions (both state and public) work perfectly in our country. Of course, there are a lot of problems here (both theoretical and practical), including the “simulation” noted by the author, and excessive - in some cases - politicization, which is detrimental to the fulfillment of the main tasks. But these problems must be discussed at a different level, excluding, first of all, the substitution of concepts and including the study of specific material, and not speculative ideological constructions .

And then the most interesting thing begins in E. Kholmogorov’s article. Having criticized liberal human rights activists on far-fetched grounds, he builds an alternative concept, which, on the one hand, creates the impression of playing with words in order to shift the meanings they denote, and on the other, sounds very... liberal in places. It is, however, very difficult to argue on this level, since the problem ultimately comes down to the difference in initial ideological attitudes. Nevertheless, let's try to identify these milestones.

The initial thesis of the proposed new “philosophy of human rights” is the replacement of “human rights”, i.e. "an in no way measurable and incommensurable abstraction" to "the rights of a citizen" - "a real political and legal subject." Such rhetoric is completely meaningless from a legal point of view, since this division is related to the concept of citizenship; Naturally, civil rights include human rights and are inextricably linked with them. It can hardly be assumed that the author thus proposes to simply throw stateless people or foreign citizens out of the Russian human rights field. Rather, behind this proposal there is a desire to shift the fundamental emphases on which the building rests. In this case, the “abstract” person is exchanged not for a “real” citizen, but for another abstraction - the “people”, which, as a collection of citizens, constitutes the state (remember that earlier the author actually put a slightly different meaning into the concept of “state”) . There is no objection to the words about the sovereign power of the people, and the Constitution enshrines this principle. Further, explaining this position, the author sounds so liberal that the most radical liberal human rights activists and politicians like S. Kovalev or L. Ponomarev could easily subscribe to these words. Thus, the “law enforcement” mythology proposed to replace the “human rights” mythology considers an attack on the right of every citizen as “an attack on the sovereign and the state,” i.e. as anti-state activity. An official guilty of this thereby acts against the state and insults the sovereign - the people.

Looks impressive. And it doesn’t even seem to contradict the liberal worldview: it seems to carry an identical meaning, calling the same thing in different words. However, it only seems so. In fact, what we have before us is not a simple game with words, but a game with meanings, a desire to shift them into the area of ​​other values ​​and priorities. Therefore, as a reaction to the text as a whole, the idea of ​​totalitarian human rights protection arises. This is a combination of the incompatible, like, say, “totalitarian freedom.”

As for the proposal to introduce people's tribunes instead of ombudsmen, I will not dwell on this in detail. The mentioned institution existed in a very specific historical, cultural, psychological, social-class context, so tearing it out of this context and transplanting it onto modern soil seems unproductive. If only because it did not receive further development, unlike the institution of the ombudsman, which just managed to demonstrate its viability both in time and in space. Thus, having appeared in Sweden at the beginning of the 19th century, today it is in demand in many dozens of countries around the world with completely different cultural and political backgrounds. And the people's tribunes were only a local episode.

However, this raises an interesting and symptomatic question. There are fundamental features that distinguish the institution of the Ombudsman from other state institutions that in one way or another carry the function of protecting human rights (in a broad sense, of course, all state structures carry it, but we are talking in a narrow sense, meaning primarily the system of law enforcement organs). We are talking about the lack of imperative powers of the ombudsman. This aspect is the main obstacle to its introduction into the Russian legal and government system. An independent state body with a high status (not some fictitious commission “under” someone), at the same time not having the right to make binding decisions, to punish and pardon - this is certainly perceived in our country as nonsense. How is this powerless power? Who needs it?

Meanwhile, this paradox, as already mentioned, is very effective in other countries. Of course, national ombudsmen have their own specifics, their status may give them a different balance of “strength” and “weakness,” but this “specific difference” is generally preserved. The formal absence of power does not make it meaningless, but gives it a different kind of power (what is denoted in English by the word authority, as opposed to power) - the power of authority, based on the potential of civil society. Since in Russia this potential is still in its infancy, there is no need to talk about the full demand for the institution of ombudsman. This requires long-term development of both the political system and the soil on which it grows. Now we can only talk about individual local successes, which, God willing, will develop into a trend in the future. But to cut down this sprout under the pretext that it is fragile and ineffective, offering some kind of emergency in return, would be wrong from the point of view of Russia’s development prospects.