(Un)Civil Societies Report: May 28, 2003

28 May 2003, Volume 4, Number 13

IN FOCUS

TATAR MUSLIM WOMEN WIN LAWSUIT OVER HEADSCARVES BAN. Muslim women in the Russian republic of Tatarstan have won a court battle that is seen by many as a vindication for the struggle for equality of religions in the Russian Federation, dominated by the Russian Orthodox Church. The appellate chamber of the Russian Supreme Court ruled on 15 May that citizens may have their passport photographs taken wearing headscarves if their religious beliefs require it. Considering the appeal of 10 Tatar Muslim women from Tuben Kama, the court annulled Article 14 of the Russian Interior Ministry's 1997 passport regulations, which require photographs without sunglasses and headwear (see "RFE/RL Tatar-Bashkir Report," 15 May 2003).

Vladimir Ryakhovskii, a Moscow-based lawyer representing the plaintiffs, making a larger point about religious freedom in Russia, told "Izvestiya" daily in an interview published on 16 May: "We have won a very important victory because from now on not only Muslim women will be able to be photographed the way their religion requires it. Orthodox nuns also may have their passport photographs made wearing headscarves." The federal Interior Ministry's passport and visa bureau told reporters that it will appeal against the court's ruling (see "RFE/RL Tatar-Bashkir Report," 20 May 2003). In fact, Orthodox nuns and other religious bodies have not become involved in this dispute.

The controversy pitted religious communities against the state but also provoked contradictory responses from secular authorities. Apparently unwilling at first to confront religious activists, the Russian Interior Ministry first allowed women to be photographed with headgear, but then changed the rule. First, a 1998 memo interpreting the 1997 regulations allowed room for concession to religious communities. But then security officials evidently could not make proper identifications without having ears, neck, and hair visible. In many countries, even those with equal rights for all religious traditions such as the United States, all applicants for passports must submit photos with the face, ear, neck, and hair visible. In Russia, the local tolerance of kerchiefs in photos stopped in February 2002, followed by a June 2002 telegram to the regions invalidating the recommendation, which in turn prompted the lawsuit.

Ryakhovskii, the women's lawyer, said, "The directive put them [Muslim women] in a catch-22 in which religious norms and government regulations irreconcilably contradicted each other," moscowtimes.ru quoted him as saying on 16 May. The decision of the appellate chamber was seen as a victory for civil rights and religious tolerance in Russia by both the Muslim community and secular civil rights advocates. International groups, which have generally refrained from commenting about governments' decisions to ban headscarves in France, Turkey, and other countries where headgear has become a public controversy, have preferred to see such decisions as a sign of religious tolerance than as a concession to religious fundamentalism.

Writing for the conservative city-journal.com on 23 April, British commentator Theodore Dalrymple analyzes France's headscarf controversy with its immigrant Muslim community. In France, Interior Minister Nicolas Sarkozy provoked the ire of the French Muslim community in May when he stated at a public meeting that photographs for the compulsory French identity card must be taken bareheaded, without exceptions. Another government body had previously ruled that Muslim women could wear the headscarves in public schools, igniting further debate which culminated in Prime Minister Jean-Pierre Raffarin announcing that he intended to reinstate the ban on headscarves "in the exercise of any public function." Citing Agence-France Press reports, Dalrymple says, "scarf partisans are duplicitously using a double tactic and a double language to impose their views on Muslim women -- their ultimate goal being the destruction of the liberal-democratic state itself." Western news services reported the booing of people in the hall where the French interior minister spoke against the headscarves; Dalrymple insists there are reports of some women in that audience who in fact applauded the minister for upholding women's rights and the secular state. Citing incidents of rape of young Muslim women who wore Western-style clothing in immigrant housing projects outside Paris, Dalrymple surmises that "it is impossible to know whether the adoption of Islamic dress by women in Western society is ever truly voluntary, and so long as such behavior persists, the presumption must be against it being so."

Because Muslim women are often subject to forced marriages, "no one can tell whether they wear Islamic costume from choice or through brute intimidation," says Dalrymple. By contrast, some human rights and Muslim women's rights groups have written about the empowerment Muslim women obtain both within their families and as poor immigrants in wealthy Western societies by wearing the headscarves and battling for their recognition in public life.

The dynamics of the headscarves controversy in Russia, while similar in some respects to Europe, is different because it involves citizens rather than immigrants, and national groups with centuries of history together, now co-existing within the federal framework of Russia. Beyond the headscarves debate, tensions between Kazan and Moscow have arisen recently over Tatarstan's autonomy and the degree of power sharing with the capital. Seen in this context, the passport-photographs issue appeared to be more about autonomy for Tatarstan than about a bid to force Russian state conformity to Islamic law.

Muslim leaders were angered when Russian President Vladimir Putin, at a meeting with World Tatar Congress delegates last year, said that Muslim women should not be allowed to wear headscarves in the passport photos because the photos had to conform to "national standards" (see "RFE/RL Newsline," 30 August 2002). Mukaddes Bibarsov, chairman of the Muslim Spiritual Directorate of the Volga region, said women should insist on their right to wear the scarves for their passport photos, because it is "an actual religious duty and not a trend in fashion," Tatnews reported on 4 September 2002 (see "RFE/RL Tatar-Bashkir Report," 6 September 2002). In responding to the challenge, Interior Ministry spokeswoman Irina Bochinkova said: "The Koran is not a legal source of rights on the territory of the Russian Federation. We have a secular state, so no religion can be a dominating one," vesti.ru reported on 15 May.

Without the passport, used for domestic identification not for foreign travel, women would face difficulties in getting married, changing their residential registration permits, and obtaining insurance policies or other documents (see "RFE/RL Tatar-Bashkir Report," 15 April 2003).

Although the women's court battle has been won for now, the official appeal against the ruling and public sentiment indicate continuing opposition to any tolerance of headscarves. In a commentary titled "Back to the Middle Ages" in "Nezavisimaya gazeta-religii," No. 8, Ruslan Tuimazy said the issue wasn't really whether Muslim women could wear kerchiefs. "No one can prevent any believer regardless of his or her religious affiliation from dressing in accordance with their traditions or canons." Rather, Tuimazy believes the demand of women to wear the scarves when taking official passport photographs "is a definite challenge to the secular society and state, a testing of the integrity of the constitutional principle of separating religion from the state." The demand doesn't come from the entire Muslim community as a whole, says Tuimazy, but "only from radical-minded Islamists, members of the Tatar Civic Center, which has resolutely declared its rejection of the secular society surrounding it."

The lawsuit brought by the Muslim women made reference to the commands of the Koran, although Tuimazy believes that the Koran only requires that an adult woman be modestly dressed in front of males outside the family. Appearing to give in to radicals, writes Tuimazy, the Russian Supreme Court decision creates "a rather dangerous precedent" with consequences now hard to predict. Using an argument often made by central authorities faced with the challenge of Russia's multiethnic society, Tuimazy asks what would happen if all the religious groups with various types of traditional clothing were to demand that their passport photos be taken with various hats or robes in keeping with their traditions. "We have to think about the fact that our Russian society, which has already become divided by national [ethnic] affiliation in the last decade, is now gradually and irrevocably gaining distinctions by religious affiliation. How will this be reflected on the social climate, will this foster tolerance, how will it affect youth and the atmosphere in the military collective?"

In France, some of the women who attended the public meeting where Interior Minister Sarkozy announced the plan to ban headscarves have announced that they will take their case to the European Court of Human Rights if he follows through on the legislation to ban the custom in public schools and other institutions and in civil procedures like passport photos. The Tatar Muslim women had indicated the same intention if they lost their suit. Thus, "they intend to hoist Western society by its own petard," writes Dalrymple about such efforts -- using human rights instruments to undermine a liberal society defending separation of church and state. Western women's rights activists have pointed out in defense against such attempts to undermine human rights that Article 5 of the Universal Declaration of Human Rights says that no one can use one right within the declaration to undermine another right, i.e. religious believers seeking freedom of religion cannot undermine freedom of speech or women's rights. Yet no internationally recognized body has enough credibility to make a final pronouncement on such matters, ensuring that the controversies will continue.

Whether invoking internationally recognized human rights, constitutionally protected civil rights, or national customs and norms, by their inconsistency and confusion, as well as failure to resolve the larger issues of federal-regional relations and tolerance of minorities, Russian government agencies have ensured that the headscarves issue will not die.

AZERBAIJAN

UN FINDS 'SUBSTANTIAL GAP' BETWEEN LAW, PRACTICE. The United Nations Committee Against Torture (CAT), the treaty body monitoring compliance with the UN Convention Against Torture, reviewed Azerbaijan's second periodic report to the committee on 30 April-1 May. An Azerbaijani human rights group, the Human Rights Center of Baku led by Eldar Zeynalov, presented an alternative report to the CAT to supplement as well as critique the official report. In keeping with general practice in dealing with UN members, the CAT conclusions accentuate the positive from the outset in order to gain cooperation with the government. Azerbaijan is praised for adopting a new Criminal Code and Code of Criminal Procedure and introducing torture into the Criminal Code as a criminal offense -- a reform made only by some of the post-Soviet countries reviewed by CAT in recent years. The UN expects also noted as a positive development Azerbaijan's creation of the post of ombudsman, believing it to be an indication that torture cases might have some new avenue of appeal. Government assurances of action to reduce tuberculosis in prisons were also cited.

Yet despite the need to cloak the assessment with phrases of positive reinforcement, in a press release published at http://www.unhchr.ch at the end of the session, the CAT experts spoke of "numerous ongoing allegations of torture and ill-treatment in police facilities and temporary detention facilities, as well as in remand centers and in prisons" in Azerbaijan. The allegations have been made by local and international human rights groups as well as multilateral institutions, including the UN's own special rapporteur on torture, who visited Azerbaijan and reported on his findings at the UN Commission on Human Rights in 2002.

While Azerbaijan has taken the important step of defining torture as such as a crime now, the definition is still weak, in that it leaves out language from the UN Convention Against Torture about purposes of torture, restricts the meaning of "torture" to systematic blows or other violent acts, and "does not provide for criminal liability of officials who have given tacit consent to torture," i.e. the country's political leadership. CAT members also expressed concern about the lack of information provided by the Azerbaijani government delegation about turning over suspects to countries where they face torture -- a reference to a practice common among former Soviet states in dealing with demands from their neighbors.

In its conclusions, the CAT remained concerned about the lack of independence of the judiciary as well as continued detention of prisoners beyond mandated time periods and reports of harassment and attacks on human rights defenders. This was no doubt a reference to recent attacks on the offices of Zeynalov and other activists in Baku (see "RFE/RL (Un)Civil Societies," 30 April 2003). Possibly because of the international attention to Zeynalov's case, local police have now begun an investigation into the attack, Turan reported on 13 May, although because pro-governmental groups were alleged to have been involved in the harassment the outcome of such a probe is uncertain.

Conclusions issued by such bodies are viewed as largely symbolic -- the government delegation mainly hopes to get through the presentation with as little probing and prodding as possible. Therefore, without a great deal of leverage to effect change in behavior, the experts try to incorporate in their recommendations various concepts that might empower NGOs in a society to continue to press governments to meet their obligations. The CAT concluded that detainees ought to be able to lodge complaints through independent lawyers free of government control, without censorship, and most importantly, without reprisals. The antitorture body also called for establishing an independent body "with the authority to receive and investigate all complaints of torture and other ill-treatment by officials," which if allowed to work unhampered could have a beneficial impact in Azerbaijan. Such a recommendation is an indirect admission that the ombudsman office may not yet be able to perform such an independent role.

Prisoners in Azerbaijan have not had access to independent lawyers or medical doctors; appealing to such figures can be a safeguard against torture in a system where they are not under pressure. Several outspoken lawyers for the opposition have been disbarred or pressured into dropping sensitive cases, and their cases have been raised by foreign governments and international bodies in an effort to build more protections for prisoners. The law on lawyers has undergone several redraftings, in part at the prompting of international experts.

Currently, amendments to the law on lawyers passed in 1991 are being readied in the presidential administration, Turan quoted Fuad Aleskerov, chief of the department on law-enforcement agencies, as saying on 17 May. Human rights advocates believe the provenance of the new drafts is part of the problem, since independent attorneys, including those most concerned about civil rights, have not always been consulted in the drafting process, in or out of parliament. Officials believe that the law is being implemented so as to secure the independence of the bar and ensure lawyers' right to provide services to their clients and form associations of attorneys freely, said Aleskerov. One issue not resolved is the formation of a new "collegium of advocates" or officially recognized bar association, which the president's office said it will "leave to their own discretion" since "they are independent."

Evidently, lawyers disagree about how to form the body, since some say only those who pass a bar examination should become members and others say a founding meeting should be held to create the new body. Another issue to be resolved in the new draft is the status of "advokaty" (trial attorneys admitted to criminal proceedings) versus "yuristy" (lawyers not allowed to represent defendants in criminal trials). An option for lawyers to take exams to enable defense of clients is being proposed, along with clarification of the requirements to enable attorneys to take cases to appeals courts and to the Constitutional Court. Such improvements in the law could in principle benefit persons tried and sentenced after admissions made under torture or mistreated while imprisoned.

BELARUS

NEW CRACKDOWN ON NGOS. The Belarusian government has moved its crackdown against NGOs to a new level in the last month, the Assembly of Democratic Nongovernmental Organizations of Belarus and local independent media reported, although some tentative signs appeared this week of dialogue with officials about punitive NGO regulations. Like other governments in the region (see "RFE/RL (Un)Civil Societies," 30 April 2003), Belarusian authorities are further restricting already harshly limited activities of civic groups primarily to prevent them from participating in any way in the parliamentary elections of 2004 or other political activity.

As with past efforts to control society, President Alyaksandr Lukashenka is working on several fronts, purging troublesome NGOs who are too critical of his rule, initiating official dialogue to stall for time, and promoting state-controlled bodies to displace authentic NGOs, i.e. through the Young Pioneers, who staged marches at schools throughout Belarus on 19 May, Belapan reported on 20 May (see "RFE/RL Newsline," 20 May 2003). In past years, the government has used the NGO registration process to shake loose undesirables and keep them on a short leash if they do manage to clear the regulatory hurdles to legalization.

Local observers say the new bid for control comes at a time when Lukashenka's ratings in public opinion surveys are low and increasing opposition is feared. A poll conducted by the Independent Institute of Socioeconomic and Political Studies (NISEPD) conducted in March-April found that only 26.2 percent of Belarusians would vote for Lukashenka again if presidential elections were conducted at that time (see "RFE/RL Poland, Belarus, and Ukraine Report," 20 May 2003). Local independent media speculates that Lukashenka is preparing to extend his term and remain in power through another constitutional referendum such as in 1996, or a similar maneuver.

On 21 April, the Justice Department in Hrodna appealed to the district court to disband Ratusha, a group uniting smaller resource centers throughout the region. The ban related to a previous warning about improper usage and storage of printing equipment; after two such official warnings within one year, the authorities can suspend any organization. Other groups , including the Varuta Agency for Regional Development, a regional group in Baranavichy, and the Youth Christian Social Union, a national group in Minsk, have also experienced legal maneuvers. Justice authorities opened a suit against Varuta on 11 May and the Youth Christian Social Union on 21 April. On 23 May in Homel, a local court held the first hearing in procedures to close Civic Initiatives, a Homel regional public association, on charges of "systematic violation of the law," including "improper use of foreign aid" and violations of its own charter, Belapan reported on 26 May.

Investigation into the Brest branch of Viasna, the human rights group, is also under way. A group called Krug in Mahilev was also warned when a letter went out with the group's seal a few millimeters smaller than the size of the seal submitted in registration documents.

NGOs united in the Assembly of Democratic Nongovernmental Organizations called a press conference on 29 April to protest government efforts under way to liquidate the civic organizations, which they saw as a misuse of regulations in order to annihilate them. Supporters and a lawyer for the assembly said the actions are being taken not due to actual violations of law but at the behest of the government. "The present cases of liquidation are different in the legal sense due to the fact that justice authorities are now using Article 57 of the Civil Code allowing for the closure of public organizations even for a single violation," Yury Chavusau said at a news conference reported in a press release by the assembly the same day.

Ales Milinkievich, head of Ratusha, said he was informed by Justice Ministry authorities that he was violating publishing regulations by storing and using a risograph, a high-volume duplicating machine, at his organization. A court case about the matter was heard in his absence as he was not told of the court date. In Brest, authorities launched a legal action against Varuta, citing a petty infraction, claiming the group unlawfully used an abbreviation of its name instead of its full, registered name. Homel Civic Initiatives leader Viktar Karnyayenka said a letter from the Justice Ministry cites his organization for various violations, including major activities like observation of elections and petty infractions like the use of letterhead that did not fit the "unified system of documentation of the Republic of Belarus."

Ratusha and Civic Initiatives, among groups being targeted currently, feel they have been singled out both because they backed Syamyon Domash, former governor of Hrodna and an alternative democratic presidential candidate in the 2001 elections, and also because they also mounted observations teams for the presidential elections as well as recent town-council elections.

All of these groups created networks of "regional resource centers" which provided assistance to smaller NGOs and civic initiatives locally by providing them with access to duplication, printing, and communication facilities as well as with contacts with like-minded individuals at home and abroad. They have been among the many important "horizontal" efforts to combat the "vertical" control of the presidential administration through every local branch of government and police. The research centers were funded in part by foreign donors and therefore disliked by the government, which views outside support of groups critical of the government as interference in internal affairs. Meanwhile, democratic groups and their supporters abroad argue that where civic initiatives face such heavy repression as in Belarus, the only way civil society could ever get a start is with outside assistance of those willing to take risks.

Ales Byalyatski, leader of Viasna as well as head of the Working Group of the Assembly of Democratic Nongovernmental Organizations, told reporters at the news conference last week that attacks on NGOs had been launched before through misuse of the law. The way to combat them was through solidarity of all NGOs, he said, urging all those in the nongovernmental "third sector" to defend the minority of those persecuted. Human rights leaders in Belarus launched a public campaign of solidarity on behalf of the groups being shut down, and attracted at least a dozen major groups that began writing protest letters to the Justice Ministry and urging foreign governments and the Organization for Security and Cooperation in Europe (OSCE) mission in Minsk to take up the issue. European groups including the International Helsinki Federation and the Norwegian Helsinki Committee came to their defense. Their appeals have begun to bear fruit, as now the local UN representative in Minsk has written to authorities about the dissolution of Ratusha, and the OSCE mission in Minsk is also monitoring the case.

Not only formal legal procedures have been used against the activists. Ratusha head Ales Milinkievich received a threatening letter on 7 May from the Russian National Union, an extremist group that has attacked democratic opposition members in the past, charter97.org reported on 22 May.

A lawyer for the Assembly of Democratic Nongovernmental Organizations says Belarusian law does permit observers at elections from parties, civic groups, voters' groups, candidates, and international organizations, and therefore the government does not have the right to attempt to shut down NGOs interested in this activity. Given that the official election commissions are completely under executive control, and have no representation of opposition parties within them, a system of outside observers has been the only way to monitor elections.

The NGO activists have tried to use existing legal procedures to defend themselves but lawyers attempting to win the battle in court face reprisals if they go too far in challenging the government, as several attorneys who have been disbarred for their work can testify. Presidential Decree No. 13, issued on 15 April, also effectively bars NGOs from representing citizens in court, a method used in the past both by human rights activists in NGOs as well as by human rights lawyers disbarred by the government for their defense of the opposition.

The postponement for two weeks of one of the NGO court hearings in Homel, possibly due to an impending visit of an OSCE official, indicates international pressure may have some effect on the Belarusian government's intentions to remove its rivals from the scene. At least some officials agreed to meet in "public hearings" to discuss the issue of NGO regulation with UN and OSCE officials present. Mikhail Suhinin, head of the Department of Public Associations in the Justice Ministry, Department expert Alyaksandr Haryton, and some of the "Republic" group of parliamentarians were present, and NGO activists said in a 26 May press release by the Assembly of Democratic Nongovernmental Organizations said the effort was "an important first public step in the dialogue with the authorities." "Some people see us [the Justice Ministry] as a wild beast, which interferes in the work of nongovernmental organizations," Suhinin was quoted as saying in the assembly's press release. "We have never had the goal to interfere. We only fulfill the supervising function according to Belarusian legislation," he was quoted as saying, denying that the government's four recent suits to liquidate outspoken NGOs was anything more than a coincidence -- a comment challenged by NGOs activists who said they believed the coincidence was political in nature.