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Prosecutors, subjects and citizens

5 May 2013 

By Andrei Yurov 

While observing the public prosecutor's inspections of non-profit organisations (and not only non-profit organisations) in Russia (and not just in Russia!) civil society has come up against an interesting situation: "the Public Prosecutor's Office has the right to inspect anyone, for whatever reason and without restriction, and it can only itself be controlled by a higher authority." And it appears that not only employees of the Public Prosecutor's Office but also various levels of officials are confident that this is correct. 

This raises an important dilemma. Either we live in republics which contain citizens, and our Constitution begins with the words "We the people...", which means that people (and their free non-profit associations), as owners of their republic, have the right to do ANYTHING THAT IS NOT EXPRESSLY FORBIDDEN by the law, and the authorities only have the right to do that which is EXPRESSLY PRESCRIBED by the law. Or we live in autocratic states, which contain only subjects, where constitutional acts begin with the words "We the rulers, inspired by caring for our orphaned and needy subjects, grant them the following set of privileges...", which means that people (and their associations) only have the right to do that which their masters have expressly permitted them to do, and the authorities have the right to do anything apart from that which they have graciously and temporarily declined from doing. 

It is precisely this question that has taken on renewed significance of late, and answering it depends on our response to another question: is civil society beginning to develop in our countries or is it more a question of "subservient groups and corporations" being successfully 'implemented' from above? This gives rise to a number of important propositions. 

Proposition one: If we live in a republic of citizens, there are three things no single government body (especially ones who exercise control) should forget: 

1. Other officials (servants and managers hired by the people to carry out their direct duties in the public interest) can and must be monitored regularly and closely. 

2. The monitoring of citizens (and their free associations), in other words their employers, should only be done in the most extreme cases and only in the name of the most important public interests (not so-called state interests, i.e. those that protect bureaucratic corporations, etc.). 

3. The functions of oversight are assigned to them by citizens (taxpayers), and they have no right to spend a single penny on exercising control without the permission and oversight of citizens. 

Proposition two: Freedom of association is a fundamental human right, which has been included in all the relevant international documents on human rights for a reason. The point is that non-profit "associations of citizens" (as opposed to all other kinds, commercial and government/municipal legal entities) have the same rights as citizens themselves. And monitoring their activities is the same as monitoring citizens themselves. 

So associations, like citizens, should not violate the fundamental principles of the Constitution, but they are completely free to do anything else – that is their private business! An important exception are organisations who have the status of legal entity, but even here it is important to remember that control should be minimal and solely in the public interest. Another exception are of course organisations that receive state funding (from taxpayers' money). Here again, additional measures of control should only be carried out in the interests of taxpayers. 

And of course, the main thing: generally, associations of citizens, usually without taking anything from the government (from taxpayers), fulfil important functions in many different areas, including charity work, civilian oversight of public bodies, environmental protection, defending citizens' rights and various public interests, as well as establishing the principles of the rule of law in their countries and on the territory of whole regions (the CIS countries, the Council of Europe, the OSCE, etc.). Consequently, these organisations are entitled to ADDITIONAL protection and support, including protection from excessive intervention and control. 

Proposition three: Citizens should learn how to conduct civilian oversight of all the "overseers," who are de facto employed by them to carry out important functions. Otherwise the overseers are turned from rational authorities into masters, and gradually become a special caste. 

The issue of becoming aware of ourselves as citizens capable of controlling and limiting all "overseers and security officials" is the most important issue for our countries, which are still painfully trying to conceive from within their depths and give birth to "civil society," without which we will forever remain "children," subjects incapable of taking responsibility either for ourselves, our countries or our planet. 

Andrei Yurov, 
President of the International Youth Human Rights Movement