State responsibility for the massive violation of rights and freedoms : a comparative analysis of the experience of the United States of America and the Russian Federation

Gogeniia Diana Zurabovna ORCID: 0009-0008-2576-7482 Graduate student; Law Institute; Peoples' Friendship University of Russia named after Patrice Lumumba 117198, Russia, Krasnogorsk, blvd. Builders, vld. 4, room 1 dianahoheniia@ya.ru

Introduction

In modern legal doctrine, the issue of assuming responsibility by the state is quite acute, which is due both to the specifics of the status of the state itself as a subject of legal relations, and the existence of the principle of "sovereign immunity" of the state ^[3]. The principle of sovereign immunity of the state got its origin in English law, based on the fact that "The King cannot do wrong" ^[17]. We can observe the manifestations of this principle in almost all legal systems, but its essence lies in the fact that only the state itself can assume responsibility by limiting its immunity on a voluntary basis.

The Russian Federation (hereinafter referred to as the Russian Federation) and the United States of America (hereinafter referred to as the USA) have ratified the International Covenant on Civil and Political Rights of December 16, 1966 (hereinafter referred to as the Covenant). Part 3 (a) of article 2 of the Covenant contains a provision according to which the signatory States undertake to "provide any person whose rights and freedoms recognized in the present Covenant have been violated with an effective remedy, even if this violation was committed by persons acting in an official capacity". Both States adopted the Pact with statements made at the time of signing, but they did not affect the above paragraph. This is one of the totality of facts that indicate that in the analyzed States, the issue of assuming responsibility by the State in a situation of violation of the rights of persons under their jurisdiction is acute. The realization of this responsibility corresponds to the existence of such a constitutional and legal institution as compensation by the state for the harm it has committed ^[4].

Issues of the state's assumption of responsibility are periodically raised in the scientific literature. It cannot be said that this topic is not a subject of legal discussion. At the same time, attention is rarely focused on the constitutional and legal issues of state responsibility for the massive harm it has caused. At the same time, it is possible to single out separate works devoted to some aspects of this phenomenon by such authors as G. A. Gadzhieva, I. A. Andreeva, R.R. Graf, Yu. N. Andreeva, etc. It should be noted that in 2010, I. A. Andreeva defended her dissertation on the topic "Compensation for harm as a constitutional and legal institution". However, it also considers the issue of the specifics of mass harm committed by the State only in fragments.

The principle of compensation by the State for harm in the Russian Federation

The Russian Federation signed the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (approved by UN General Assembly Resolution 40/34 of November 29, 1985). Its text raises the issue of the need for States to introduce norms into national legislation that enshrine the right to restitution for "victims of abuse of power" (including their close relatives or dependents) and (or) compensation for the harm caused to them ^[5].

The Constitution of the Russian Federation contains norms corresponding to this regulation. For example, article 53 guarantees everyone the right to "compensation by the State for harm caused by illegal actions (or inaction) of public authorities or their officials," which is an unrestricted right. And in Article 52, the State is obliged to provide "victims of abuse of power" with access to justice and compensation for the damage caused.

The Constitutional Court of the Russian Federation in one of its decisions indicated that, within the meaning of article 53, the State, as a public entity, assumes responsibility for actions committed by officials or state bodies. This means that they are not a party to the tort obligation, but the State becomes one. Analyzing the current legal practice, we assume that there is no question that the Russian Federation implements the institution of state responsibility for the violation of rights and freedoms committed by it in the form of compensation for harm, which corresponds to the existing legal framework for compensation for harm caused by the state as a result of violation of rights and freedoms ^[13].

The principle of sovereign immunity in the United States

The principle of sovereign immunity in its original form is based on an idea implemented in monarchical states in which there was no possibility of charging the sovereign before a court, often described by the phrase "the king reigns, but does not rule" ^[7] attributed to Adolphe Thiers ^[6]. The concept of this principle was transferred to the American colonies, where it became the basis for the doctrine of the sovereign immunity of the states. However, at present, a number of American jurists believe that this principle contradicts not only US law, but also the fundamental principles on which the state is based — the rejection of the monarchy and royal prerogatives ^[17].

In the United States, sovereign immunity is understood to prohibit individuals from suing a sovereign state and state authorities without their "consent" ^[19]. This prohibition is not recognized in relation to municipalities ^[11]. This is manifested in the existence of restrictions on the possibility of suing these entities (for example, without obtaining consent from the United States to file a claim, it will not be accepted for consideration, since consent is a prerequisite for jurisdiction ^[12]), which, taking into account the peculiarities of the American legal system, is practically the only way to obtain compensation in in the event of a violation of rights due to the activities of the above-mentioned entities or persons acting on their behalf.

The text of the U.S. Constitution and its amendments contain no mention of the principle of sovereign immunity, nor other institutions that would be its implementation. Even supporters of the non-originalist concept of interpreting the text of the basic law of the United States do not believe that this principle corresponds to its content ^[14].

The issue of the existence of the legal doctrine of sovereign immunity was resolved by the U.S. Supreme Court. In the caseAlden v. Maine (1991) ^[10]The court, which assumed the role of an "interpreter" of the Constitution: it was established that sovereign immunity follows not from the essence, but from the structure of the original text of the Constitution. The decision was confirmed by the Court in a number of other cases, for example, in the case of USA v. Mitchell (1983) ^[12].

The question of exactly how the state should be held responsible for the "harm it has caused" remains a matter of debate in the United States. The fact that the state assumes responsibility is taken literally there: there are only a few federal laws that allow you to file a claim against the state for compensation for a violation of rights and freedoms committed by the state in the form of harm ^[8]. Examples of such legislative acts include The Tucker Act (1887), the Federal Law on Tort Claims (hereinafter – FTCA), as they introduce the right to sue the state in the presence of certain circumstances clearly regulated in the text.

The mechanisms of compensation for harm existing in the Russian Federation and the United States of America

The researchers point out that at the current stage, the Russian legal system is characterized by the presence of two independent mechanisms for compensation for harm by the state – private law (regular) and public law (emergency) ^[20]. When describing private law, they often refer to its distinctive features, including regularity, individuality and general normativity. This mechanism is mostly applicable in cases where the claim is based on the circumstances of harm caused by the State, its bodies or officials; the claim procedure for obtaining compensation is used, not based on any specialized act; the State recognizes the fact of harm after the fact. In the case of the characteristics of the public law mechanism, legal scholars point to its casuality, general certainty and its inherent social character. Its application is reduced to situations in which the state initially assumes obligations to compensate for harm due to some circumstance, for example, by adopting a specialized act defining a specific compensatory mechanism ^[2]. The second mechanism is often used in situations of mass harm, when the State assumes responsibility for non-fulfillment of obligations to implement positive governance.

In FDIC v. Meyer (1994) ^[21], the U.S. Supreme Court ruled that "the United States has failed to hold itself accountable under [FTCA] for claims of constitutional wrongdoing." Responsibility for constitutional and legal violations lies with the subjects of the offense themselves, and only they can be sued. FTCA also classifies the form of liability as civil law ^[19]. Thus, analyzing this provision and the methods described above, we can conclude that in the United States there is also a division into private law and public law mechanisms for compensation for harm.

"Mass harm" committed by the State: a comparative analysis of the Institute in the Russian Federation and the United States of America

The difference between "private" harm committed by the state and mass harm is that the latter implies a much larger range of both subjects of the harm caused and a large scale of responsibility. In both the Russian Federation and the United States, the state assumes responsibility as a result of the harm caused by the actions or omissions of state bodies or officials, which leads to the fact that it becomes "tolerated by the state", since the latter carried out insufficient or incorrect public administration. However, in situations where such harm is directed at a significant number of subjects, the State, as the guarantor of citizens' rights and freedoms, must take responsibility for their violation. Often, the need to adopt a special mechanism to compensate for mass harm is due to the fact that the circumstances of the current situation and the existing possibilities for obtaining compensation do not correspond to each other, as well as the fact that often the massive nature of the violation requires not only compensation for material harm, but also restoration of violated rights ^[9]. Therefore, States, as entities interested in protecting the interests of an indefinite circle of people, which naturally follows from the principle of the priority of human rights over the State and its activities, create mechanisms for compensation for certain situations of mass violations.

Despite the fact that the situations with the assumption of responsibility by the state in the United States and the Russian Federation are of a different nature, it is the mechanisms of compensation due to mass harm committed by the state that often take the same form: the adoption of "compensatory acts" establishing mechanisms for obtaining compensation, the conditions for their implementation and the range of subjects entitled to their implementation.

Such acts are adopted in the context of various situations. For example, when the damage was incorrectly assessed, as in the case of nuclear tests at the Nevada test site, subsequently, the Law on Compensation for Radiation Exposure (hereinafter – RECA) was introduced ^[15]. Since 1990, RECA has provided benefits worth more than $2.5 billion to more than 39,000 applicants. In other cases, such laws may be adopted as a solution to a legal gap, as happened with the Tucker Law for Indians ^[1]. The need for its adoption was justified by the lack of a source of substantive law among the Indians, on the basis of which it would be possible to file a claim under the Tucker Law, since in accordance with the legislation before the adoption of the new law, they could only use the doctrine of discovery ^[16]. Both laws were adopted in a situation where, as a result of the activities of bodies acting on behalf of the State, an unlimited number of persons were harmed.

The situation in the United States is such that such acts are adopted after a significant number of individual or collective lawsuits have been filed, which cannot be accepted for consideration due to the lack of a source of substantive law for their adoption. A significant role in the development of such regulation is played by the US Congress, which is also involved in the implementation of compensatory mechanisms: before the spread of the practice of adopting "compensatory acts", Congress adopted private legislation on payments, as, for example, in the situation with the out-of-court settlement of a class action lawsuit by victims of the syphilis research program funded by the federal government in Tuskegee ("USPHS Syphilis Study at Tuskegee") ^[18]. But often, after an out-of-court settlement, the existing federal legislation was changed in such a way as to prevent such situations from happening in the future.

The Russian legal system is also characterized by the practice of adopting specialized acts aimed at compensating for mass harm committed by the State. For example, the Laws of the Russian Federation "On the Social Protection of Citizens exposed to radiation as a result of the Chernobyl disaster", "On the Social protection of Citizens of the Russian Federation exposed to radiation as a result of the accident in 1957 at the Mayak Production Association and the dumping of radioactive waste into the Techa River", as well as regulatory legal acts such as For example, the Decree of the Government of the Russian Federation "On assistance to persons who became victims of a terrorist act in Budennovsk, Stavropol Territory." A common feature of these acts is that they indicate the need to implement a compensation mechanism, but often do not contain a specific procedure for its implementation. Russian legislation is also characterized by the inclusion of provisions that the right to compensation will be granted and the state will assume responsibility: for example, Article 57 of the Federal Law "On the Use of Atomic Energy" indicates that "The Government of the Russian Federation ensures the payment of amounts to compensate for losses and harm caused by radiation exposure and responsibility for which are borne by the operating organization to the extent that the losses and harm caused exceed the limit of liability established for this operating organization."

The issue of introducing the institution of compensation for mass environmental damage by the state in the Russian Federation

The current Russian legislation does not contain universally regulated compensation mechanisms for environmental harm, which, in our opinion, is necessary, since it is the most common type of mass harm. According to most provisions of Federal Law No. 7-FZ "On Environmental Protection", for example, paragraph 1 of Article 78, compensation for damage caused to the environment as a result of violation of environmental legislation can be carried out either voluntarily or by court decision, which for the most part indicates compensation by individuals or legal entities. In this regard, we consider it necessary to specify environmental legislation by introducing instructions on the need to introduce the procedure for compensatory mechanisms implemented at the expense of the state, or on their introduction in case of specific situations, since, on the one hand, the state often bears responsibility in situations of harm to the environment in connection with situations of inaction of its authorities On the other hand, if it is impossible to finance compensation for harm by a responsible private law entity, the question of who will be responsible hangs in the air.

For example, the United States has a Law on compensation for damage caused by oil (Oil Pollution Act, 1990). According to it, in the event that the party responsible for the damage is unable to eliminate the spill or evades responsibility, the funds come from a trust fund funded by the oil tax.

Provisions specifying the existing compensatory procedure could include the following aspects:

- on the purpose of the State's participation in the compensatory mechanism for causing such harm;

- on determining the amount of damage, in the case when responsibility will pass to the State;

- a list of circumstances in which damage is compensated by both individuals and the state;

- list of sources of financing;

- and other provisions that will be able to create a basis for the gradual improvement of the institution of compensation for mass harm caused by the state.

Final provisions

The institution of compensation by the state for mass harm committed by it, both in the United States and in the Russian Federation, is still not universally regulated. This is already evident in the fact that to date, uniform definitions of mass harm committed by the State have not been developed at the regulatory level. This circumstance is associated with a number of obvious problems: the variety of specific manifestations of mass harm, the nature of the causal relationship between the actions (inaction) of the state and the negative effect on various subjects, the specifics of available adequate compensatory mechanisms, as well as budgetary constraints.

The established practice of implementing this institution in the studied legal systems has a similar logic: there are differences in the forms of state recognition of responsibility, but it is the mechanism of its implementation that, as a rule, boils down to one thing – the adoption of special normative acts establishing concretized compensatory mechanisms.

At the same time, the social significance of mass harm suggests the need to establish procedures that specify the existing provisions on its compensation in the context of imposing responsibility on the state. The direction of solving the problem may be the consolidation of universal non-individualized mechanisms for compensation for harm (both judicial and extrajudicial). At the same time, the key issue in the appropriate regulation is the mechanism for determining cases when the state assumes responsibility in a situation where its bodies and officials are not the direct causes of mass harm, but the relevant entity is not able to compensate for such harm.