Volume 7 Number 2

Spring 1998

Freedom of movement in the Russian Federation today

The Propiska and the Constitutional Court
Konstantin Katanian

     Under the communist regime, freedom of movement was monitored and curbed by means of the propiska—a required residence permit that restricted an individual’s right to choose his place of residence and to travel within the country. Inaugurated by Stalin on the model of a well-established czarist practice of restricting freedom of movement, the propiska system became increasingly entrenched over the course of the communist era. The complaints of human-rights activists about the system went unheard for many years, except in the West.
     Mikhail Gorbachev’s perestroika encouraged discussion of the public’s rights and liberties, including the freedom of movement that the propiska kept rigidly in check. Activists protested that the propiska violated the constitutional right to travel freely and to choose one’s place of residence. In the period between 1990 and 1991, the USSR Committee on Constitutional Oversight (Komitet Konstitutsionnogo Nadzora SSSR), headed by Sergei Alekseev, recommended the system’s overhaul and liberalization. The committee concluded that all citizens of the Soviet Union should be free to choose their place of residence, being obliged to inform state officials only of their choices, nothing more. From the outset, however, the committee was hamstrung. It lacked resources, its resolutions were nonbinding, and with the USSR’s collapse, its writ expired before it accomplished much.
     The Russian Federation Parliament, moreover, failed to set up a similar successor committee on constitutional oversight. Instead, in July 1991, Parliament ratified the Law on the Constitutional Court. By October, the newly appointed justices of the Constitutional Court had begun their work, and, by January of 1992, the Court began to examine cases touching on the constitutional protection of citizens’ basic rights. But several years passed before the issue of the propiska, which stayed on the books in democratic Russia, came before the Constitutional Court. Finally, on April 18, 1995, the Court heard a case brought by Lyudmila Sitalova. Sitalova claimed that the RSFSR Housing Code violated Art. 40.1 of the Constitution, which reads: “Everyone shall have the right to a home. No one may be arbitrarily deprived of a home.” Her case did not directly involve the ordinances covered by the propiska law, because the Court found that they were not subject to adjudication; but the Court did note that the USSR Committee on Constitutional Oversight had already found the ordinances covered by the propiska statutes unconstitutional and nonbinding.
     What Sitalova’s case did challenge was the constitutionality of Arts. 54.1 and 54.2 of the Housing Code, which maintain that a tenant has the right to host guests in his rented space “in the prescribed manner.” The oblast court had interpreted this phrase to mean that tenants and guests must comply with the propiska regulations. Sitalova’s counsel argued that the oblast court’s interpretation of Arts. 54.1 and 54.2 of the Housing Code was mistaken, and that this judicial interpretation ran counter to Art. 40.1 of the Constitution.
     The facts were these. Sitalova had lived in V. N. Kaderkin’s apartment for five years, in a relationship that resembled a common-law marriage. But throughout this period she remained registered as a resident of her daughter’s home. After Kaderkin’s parents died, Sitalova tried to register herself as a resident of Kaderkin’s apartment, but her application was refused. The regional court then ruled in Sitalova’s favor, but the Astrakhan Oblast Court subsequently reversed the regional court’s decision. Given Sitalova’s violation of the propiska regulations, set forth in Art. 54 of the Housing Code, the Astrakhan Oblast Court held that local authorities had no obligation to register her. It added that, since she was not a family member of the apartment’s legal tenant, she did not have an unconditional right to register there.
     In its 1995 decision the Constitutional Court ruled that, “in the course of guaranteeing constitutional rights, the legislator must adhere to the demands of Art. 55.2 of the Constitution, which says that no laws denying or belittling human and civil rights and liberties may be issued in the Russian Federation. This is directly applicable to the Housing Code’s regulations for introducing a new tenant into a residential housing unit.” Article 54.1 of the Housing Code holds that tenants may house other individuals in their rented apartments “in the prescribed manner.” This formulation, the Court ruled, is excessively vague; it is not clear which state authority may set forth regulations or what kind of regulations are reasonable. As a result, the regulations may be, and often are, applied arbitrarily. Since the federal government has not passed any definitive act to “establish the manner” for housing guests in one’s home, the regional legislative and executive organs enforce their own regulations by default. But the Constitutional Court warned that this situation may lead to a violation of the citizen’s constitutional rights to a home and to protection against the arbitrary deprivation of a home. On April 25, 1995, the first chamber of the Constitutional Court found that the phrase “in the prescribed manner” contained in Art. 54.1 of the Housing Code—and interpreted to mean that “individuals who host guests in their homes must comply with the propiska regulations—violates Arts. 18, 19.1, 27.1, 40.1, and 55.2–3 of the Constitution of the Russian Federation.” (Note that the Court is divided into two chambers or panels. According to Art. 20 of the Law on the Constitutional Court, the first consists of ten justices, and the second of nine; the chambers have no fixed specializations, but the individual specializations of the members and the caseloads of the two chambers are considered when cases are assigned at plenum sessions.)

Registration fees
     On June 25, 1993, Parliament passed the Law on the Right of Russian Citizens to Move Freely and Choose their Place of Sojourn and Domicile within the Borders of the Russian Federation. The law gives citizens extensive rights to travel and settle freely. Citizens are still required to register with local authorities as permanent or temporary residents of a particular home; but the only purpose of registration is to provide the state with information about citizens’ whereabouts. The law clearly abolishes the system of residence permits, because it introduces registration and the right of free movement. The significant difference between the previous propiska regulations and the current law is that the propiska was based on gaining permission from government authorities, while the new law only involves registration, that is, a requirement to notify the authorities of one’s permanent or temporary residence. In terms of free movement, Art. 1 of the new law reads: “According to the Constitution of the Russian Federation and international agreements on human rights, every citizen of the Russian Federation has the right to free movement and the right to choose a place of temporary and permanent residence within the borders of the Russian Federation. Any limitation on the right of citizens of the Russian Federation to free movement and to choose a place of temporary and permanent residence can be made only on the basis of law.” Article 3 concerns temporary (mesto prebivania) and permanent (mesto zhitelstva) residence within Russia’s borders:
     (1) In order to provide the necessary conditions for a citizen of the Russian Federation to realize his rights and freedoms, and to fulfill his duties before his fellow citizens, state, and society, the registration order is introduced at the citizen’s place of temporary or permanent residence within the borders of the Russian Federation. (2) Citizens of the Russian Federation are obliged to register at their place of temporary or permanent residence within the borders of the Russian Federation. Registra-tion, or the failure to register, cannot be the basis for the limitation, or a condition for the fulfillment, of those rights and freedoms that are guaranteed by the Constitution of the Russian Federation, the bylaws of Russian Federation, and by the constitutions and laws of the republics of the Russian Federation. (3) To register for permanent residence, a citizen of the Russian Federation is charged a fee according to the Law of the Russian Federation on State Fees.
     Despite the law’s provision for a system of registration (similar to that employed in many Western European countries), several cities and regions in Russia continued to use the propiska system in the traditional manner, as a means of curbing free movement. Both wealthy urban regions and regions driven by ethnic conflicts had an interest in limiting migration. These regions in particular chose to impose a high registration fee on individuals wishing to register as residents. Even Russian citizens who purchased homes had to pay these exorbitant fees. In some cases, the registration fee even exceeded the price of a home. Such charges became a significant impediment to the free exercise of the right to choose one’s place of residence.
Exorbitant fees could also be used to control people’s movements in other ways and for other reasons. On February 9, 1993, and May 5, 1994, the Moscow Oblast administration published procedures outlining how legal and natural persons could obtain a license to invite technical specialists, for example, from other regions to work in the Moscow Oblast. A license to invite a family of three to the suburbs of Moscow cost nine million rubles ($4,550); a license to invite a family to live in the more remote areas of Moscow Oblast cost six million rubles ($3,300). Such large sums could only have a chilling effect on the exercise of one’s right to move about freely.
     On March 12, 1996, the Constitutional Court finally began to examine directly the constitutionality of propiska regulations, in particular those applied in the city and oblast of Moscow, in Stavropol Krai, and in the city and oblast of Voronezh. In addition, Yury Spiridonov, the governor of the Komi Republic, filed a case, arguing that restrictions on freedom of movement were having a direct impact on the Komi economy. Many citizens of the Russian Federation lived in Komi temporarily, while working for the higher wages available in the region. When these internal migrants attempted to return home, however, they found they could not afford the exorbitant registration fees. Spiridonov argued that these registration fees were unconstitutional, because they placed an unreasonable financial burden on a citizen’s free exercise of a constitutionally guaranteed right.
     Together with Spiridonov’s case and the others, the Constitutional Court also considered a complaint lodged by Veronika Kutsyllo, a columnist for Kommersant Daily, and Roman Klebanov, a WW II veteran. They challenged the constitutionality of Art. 2 of Moscow’s September 14, 1994, Law on Fees to Compensate the City Budget for Expenses Incurred in Developing the City’s Infrastructure and Guaranteeing Social and Living Conditions for Citizens who Arrive in the City for Residency. This law fixed the registration fee for new residents at 500 times the minimum monthly wage, a sum exceeding $6,000. In a subsequent resolution, passed on October 11, 1994, the Moscow city government established procedures for registering residents who had acquired property in Moscow but who had previously resided outside of Moscow and the Moscow Oblast. The first point of the resolution made it clear that only citizens who paid the registration fee were to be granted a propiska. In the plaintiff’s opinion, the law unconstitutionally discriminated against citizens on the basis of their “social origins.” The law imposed a high registration fee only on citizens who registered as Moscow residents for the first time. Moscow residents did not pay the high fee when they moved from one home to the next. Veronika Kutsyllo noted that “Moscow natives are considered first-class citizens, while those who previously did not have the honor of living in the capital are relegated to second-class status.” Kutsyllo and Klebanov argued that the Moscow law violated Arts. 4, 27, 35, 55, and 76 of the Constitution.
     Finally, the Constitutional Court also examined the propiska regime in the Stavropol Krai. The krai had imposed a limit on the number of propiski to be issued in Mineralnye Vody, the principal gateway for refugees from the Caucasus region. The annual quota for new registrations had been fixed at 0.5 percent of the region’s population. As for the Voronezh Oblast propiska regulations, the Constitutional Court, on reflection, declined to rule on these, because the oblast had already changed the regulations by the time the case came before the Court. (According to Art. 43.2 of the Law on the Constitutional Court, the Court suspends the consideration of legal acts that have become void.) The Court also ruled that it had no jurisdiction over Voronezh City propiska regulations, because they were passed by local government agencies and thus within the competence of the ordinary courts. (According to Art. 125 of the Constitution, the Constitutional Court does not have jurisdiction over acts of local governments and, according to Art. 120, the courts of general jurisdiction consider cases of noncompatibility between the law and regulations of the state and its agencies.)
     In their arguments before the Court, on March 12, 1996, representatives from the city and oblast of Moscow and the Stavropol Krai claimed that their constituents were deeply concerned about the damaging effects of sudden population growth in their regions. Heavy migration to urban and border regions was creating an overwhelming demand for the development of infrastructure, resulting in chronic shortfalls in their municipal budgets. The governments claimed they had the right to raise revenues by collecting registration fees. Article 76 of the Constitution permits regional governments to adopt legal regulations, including taxes, fees, and customs, so long as these regulations do not come under federal jurisdiction. On April 4, 1996, the Constitutional Court rejected these arguments and held that, “according to Art. 114 of the Constitution, the federal government ensures the implementation in the Russian Federation of a uniform financial, credit, and monetary policy [and] implements measures to ensure legality and the rights and freedoms of citizens.” Regions may not introduce local taxes that violate federal legislation. Under federal law, people should be required to pay only a small, symbolic fee when registering with local authorities as new residents. Instead, the regions were imposing fees of a confiscatory nature. The amount of the registration fees was disproportionate to citizens’ real income. In the face of such burdens, the right to freedom of movement and choosing one’s place of residence had become an hollow declaration.
     Furthermore, the fact that the fees applied only to the new residents of a particular region constituted real discrimination against citizens based on social origins. Article 19.2 of the Constitution guarantees “the equality of rights and liberties regardless of gender, race, nationality, language, origin, property or employment status, residence, attitude toward religion, convictions, membership of public associations, or any other circumstance.” In addition, the article categorically forbids “any restrictions on the rights of citizens based on social, racial, national, linguistic, or religious grounds.”
     The Constitutional Court allowed that regional governments have the right to collect taxes and fees in order to meet their budgetary requirements. But they may impose taxes and fees for this purpose only on the residents of a region, not on those seeking residence. Otherwise the power to tax would become the power to destroy freedom of movement within the Federation. The federal government should fix an upper limit on registration fees, taking into consideration an ordinary citizen’s ability to pay. The imposition of a registration fee may not impair an individual in his free exercise of constitutionally guaranteed rights and freedoms. In establishing a fee schedule, regional governments must comply with Art. 75.3 of the Constitution, which states that federal law establishes the “general principles of taxation and levies in the Russian Federation.” Regional governments must also adhere to the general principles of taxation, which forbid the establishment of arbitrary tax rates. Furthermore, the Court reasoned that the collection of excessively high fees contradicts Art. 7.1 of the Constitution, which reads: “The Russian Federation shall be a social state, whose policies shall be aimed at creating conditions that ensure a dignified life and the free development of the person.”
     In reaching a decision in this case, the first chamber of the Constitutional Court also relied on a variety of additional arguments. Both the Constitution and international norms establish that any limitation of the right to freedom of movement must be fixed by law. The Russian Constitution explicitly states that federal law alone, and not the laws of regional governments, may curtail citizens rights and freedoms. Accordingly, in the Court’s opinion, the June 25, 1993, law (on the rights of Russian citizens to move freely) “regulates social relations in order to guarantee the conditions necessary for citizens of the Russian Federation to exercise their rights and freedoms, and also to fulfill the state’s responsibilities to other citizens, governments, and societies. The law contains a list of justifications for limiting the right to travel and freely choose one’s place of residence [Art. 8], and it introduces a system of domicile registration for informational purposes only. Registration or the absence of registration may not constitute a basis for limiting a citizen’s other rights and freedoms [Art. 3.2].” Clearly, the Court was saying that the choice of one’s residence is an expression of personal autonomy and that registration may not assume the character of a residence permit. The Court found that registration for informational purposes only is an acceptable limitation on the citizen’s right freely to choose his or her place of residence. This type of registration complies with Art. 6 of the June 25 law. It obliges citizens to appear at an official registration office within seven days of arriving at a new residence and to present passports as well as other documents proving legal possession of a residence. On April 4, 1996, the Constitutional Court ruled that Moscow’s and Stavropol’s registration fees were unconstitutional. People who refused to pay the fee could not be deprived of their constitutionally guaranteed rights and freedoms. The Court overturned the lower court decisions in the Kutsyllo and Klebanov cases, and subsequently both were allowed to register at their new residences.

Ignoring the Court
     Although the Constitutional Court ruled forcefully and unambiguously on the registration-fee issue, the problem did not disappear. After the 1996 decision, the Moscow Oblast Duma revised its registration-fee system, lowering the amount of the fee to 300 times the minimum monthly wage. Three new residents, I. V. Shestopalko, Olga Sachkova, and Marina Kriuchkova, could not afford to pay the required registration fee, and the local internal-affairs office rejected their applications to register as residents. The three turned to the Constitutional Court for relief. Their case challenged the constitutionality of Arts. 2.1–3 and 4.6 of the July 5, 1996, Moscow Oblast Law on Fees to Compensate for Budget Expenses Related to the Development of Municipal Infrastructure in Populated Areas of the Oblast and the Guarantee of Social and Living Conditions of Citizens who Arrive in Moscow Oblast for Permanent Residence. The case was examined only on June 7, 1997, after federal legislation on the tax system had already been revised.
     In its April 4, 1996, ruling, the Court had recognized that regional governments had the right to introduce their own taxes and fees. Subsequently, the federal government centralized the tax system and repealed the presidential decree giving regions the right to introduce their own taxes and fees. Since the presidential decree was no longer in force, the applicable federal law was now the December 27, 1991, Law on the Tax System of the Russian Federation. Article 18.2.2 of this law states that regional governments may not introduce taxes and fees that are not envisaged by federal legislation. In its resolution of March 21, 1997, the Court affirmed the constitutionality of Article 18.2.2 of the 1991 law. Since the registration fees established by the Moscow Oblast law were not included in the list of taxes and fees that regional governments may introduce under federal law, the fees were ruled in violation of Art. 75.3 of the Constitution.
     In its ruling, the Constitutional Court emphasized that Art. 27.1 of the Constitution protects the right of any person legally on the territory of the Russian Federation to move freely and choose his domicile. A federal law may limit this right only if it can be shown that a limitation is necessary to protect the constitutional order, public morals, health, the rights and legal interests of other persons, or national security (Arts. 55.3 and 56). The Constitutional Court also reiterated its 1996 ruling that residence permits violate the Constitution. By making a citizen’s registration in his chosen place of domicile dependent on the payment of a fee, the law, in effect, reintroduced residence permits and violated Arts. 27.1 and 55.3 of the Constitution. On July 2, 1997, the Court ruled that the Moscow Oblast law was unconstitutional.

Freedom of movement restrained
     Even after this seemingly crystal-clear decision, federal and regional laws continue to constrict the right of free movement. Citizens who do not possess a propiska, for instance, cannot legally obtain what Russians call the “foreign passport,” necessary for travel abroad. A citizen may apply for and receive such a passport only in the city where he or she is legally registered.
     In January of this year, another case concerning the propiska came before the Constitutional Court. The plaintiff, Alexander Avanov, questioned the constitutionality of Arts. 8.1 and 8.3 of the August 16, 1996, federal Law on the Procedures for Exiting and Entering the Russian Federation. On January 15, the Constitutional Court ruled that
issuing a passport only in a citizen’s place of registered residence means that, in order to exercise his constitutional right to leave the borders of the Russian Federation, a citizen must apply to a government agency in a certain territory. The law does not provide for alternative arrangements in circumstances that make such a procedure impossible, and this results in violations of the citizen’s constitutional rights. Exercising a constitutional right becomes complicated or even impossible. The exercise of this right is dependent on registration of residence and, it logically follows, on the citizen’s possession of housing recognized as his temporary or permanent residence.
     Citizens who permanently reside abroad, forced migrants, persons without a residence, but whose residence can be confirmed by the internal-affairs bureau, and homeless persons find it practically impossible to obtain a foreign passport.
If a citizen may not exercise his constitutional right to leave Russia and travel abroad unless he obtains a foreign passport, then, in the Court’s opinion, the issuance of a foreign passport should not depend on the citizen’s possession, or not, of an official domicile. This rule is especially important because the government does not provide all citizens with a place to live. Constitutional rights and freedoms are guaranteed to citizens regardless of their place of residence and regardless of whether they have a place of permanent or temporary residence. The Constitu-tional Court found Art. 8.1 of the federal Law on Procedures for Exiting and Entering the Russian Federation in partial violation of Arts. 19.1–2, 27.2, and 55.3 of the Constitution.
     In late January, the Constitutional Court also accepted a case involving federal rules for residence registration and the removal of citizens from registration rolls. Nizhegorodskaya Oblast initiated the petition. The oblast maintained that the registration rules, which have been in effect since June 17, 1995, still erect a system of residence permits—a violation of federal law guaranteeing freedom of movement. The rules limit the duration for which citizens may register in a place of temporary residence. An individual may register as a temporary resident of a particular community for up to six months, and this may be extended only when there are extenuating circumstances.
     The government referred to both the Civil Code and the Family Code to show that the registration rules fully comply with existing federal legislation. In making this argument, the executive branch claimed dubiously that it may limit freedom of movement based on considerations derived from entirely different branches of law. Article 680 of the Civil Code grants that a resident’s guest may live in a housing unit without paying rent for up to six months. This limitation, the government argued, is justified because the fees for certain communal housing services are calculated on the basis of the number of individuals living in a certain unit. A loss of temporary registration, however, has broad constitutional ramifications. When a citizen loses his propiska, and thus his legal residence in a particular location, he also loses his ability to exercise his other constitutionally guaranteed rights.
     More complicated is the question of whether the government has the right to deny registration under certain circumstances. The plaintiff in the January 1998 case argued that points 10, 12, and 21 of the Registration Rules (Resolution No. 713, June 17, 1995) illegally transform residence registration into a system of residence permits. Nevertheless, an individual’s right to choose a place of residence should not violate the rights of those who already live in a particular residence. The individual must have a legal justification for living in a certain residence; otherwise he is illegally intruding, an act to which state organs may rightfully respond.
     The Court ruled on February 2 that the Reg-istration Rules violated the Constitution and that the duration of a citizen’s temporary residence and the proposed duration he declares when registering his temporary residence should be determined by the citizen himself. Denying a citizen the right to make these decisions, according to the Court, violated Art. 27. The Court also said that there were no legal grounds to deny a citizen the right to register his residence.
     Tatiana Grishina, the deputy governor of the Nizhegorodskaya Oblast, believes that the state should never have the right to refuse a citizen’s residence registration. But it is better to say that the list of criteria for rejecting residence registration must be objective; it must prevent officials from violating citizens’ rights on a whim or from demanding excessive fees as a condition for registration. Grishina reproaches Russian democracy, saying that “Russia’s system of residence permits remains in full force.” While this is not entirely true, Grishina’s accusation does reveal an important aspect of reality in today’s Russia: the propiska system still violates a basic freedom of movement.
     Meanwhile, the Moscow city government is preparing a bill to present to Parliament that would grant Moscow “special status” in the matter of registering foreigners residing within the city’s limits. As roughly 34 percent of all crime in Moscow is committed by foreigners from the former Soviet Union (according to city officials), the city asserts that it needs special powers to combat this menace. The justification for the city’s special status is implausible. But more than likely, the city will get its special status.
     The Constitutional Court may some day manage to shape its rulings on the propiska into a coherent whole. Perhaps its abolition of the propiska will then finally become generally accepted as binding law by local officials throughout the federation.

Konstantin Katanian is a columnist for Nezavisimaya Gazeta and holds a Degree of Candidate of Sciences in Philology.

back