27 October 2021
by Leonid Nikitinsky, columnist for Novaya Gazeta, member of the Presidential Human Rights Council and laureate of the Moscow Helsinki Group Prize
An unprecedented collective complaint from the “children of the GULAG” has been brought to the Supreme Court of the Russian Federation
This story has been ongoing for over 30 years, and now the Supreme Court has three days (from Thursday) to either accept a class action lawsuit and thereby side with the children of the repressed – or somehow evade this and side with … who? Let us consider this question.
On 18 October 1991, the Supreme Soviet of the RSFSR, whose successor was the current State Duma, following the decision of the Congress of People’s Deputies of the RSFSR, adopted Law No. 1761-1 “On the rehabilitation of victims of political repression.” Here is what it said in its preamble: “During the years of Soviet power, millions of people became victims of the tyranny of the totalitarian state, were repressed for their political and religious beliefs, or on social, national, ethnic or other grounds. Condemning the long-term terror and mass persecution of its people as incompatible with the idea of law and justice, the Supreme Soviet of the RSFSR expresses deep sympathy for the victims of such repressions, as well as their families and friends, and declares its unwavering desire to seek real guarantees of ensuring the rule of law and human rights. The purpose of this law is the rehabilitation of all victims of political repression, subjected to such on the territory of the RSFSR since 25 October (7 November), 1917, restoring them in civil rights, eliminating other consequences of arbitrariness and providing reasonable compensation for material damage.”
Article 13 of the Law on Rehabilitation provides rights for those persons who “lost their living quarters in connection with repressions, to return to live in those areas and settlements where they lived before the repressions, and to be provided with living quarters at their former place of residence”. We use the past tense, as since then almost everyone who directly suffered from the repressions in the Stalin era has already died. However, the next paragraph of the same Article 13 is appropriate to quote in the present tense: “This right also applies to members of their families and other relatives who lived with the repressed persons before the repression was applied to them, as well as to children born in places of deprivation of liberty, in exile, deportation, or special settlement.”
According to the estimates by Memorial (now listed as a “foreign agent”), there are around 1,500 children of the repressed, who have the right to return to the cities where their parents were arrested or deported.
These people, who had long lost all hope of justice, began to turn to Memorial who launched a campaign to support them. They also turned to the lawyer Grigory Vaipan who worked at the Institute of Law and Public Policy (an organisation that has also been labelled a “foreign agent”), together with Natalya Sekretareva, who also later moved to Memorial.
The campaign was and remains a well-planned “long game”. In 2017, the first children of the repressed including Elizaveta Mikhailova, Alisa Meissner and Evgeniya Shasheva, all living in different regions, gave the power of attorney to Vaipan. He put together applications for the provision of housing in Moscow based on the Law on Rehabilitation on their behalf. After the Moscow government’s refusal, they were in luck. In November 2017, the Presnensky district court upheld the demand for housing. However, Moscow City Court overturned this decision. Since then, all the courts in Moscow, the city from which those repressed were largely evicted, have rejected the children’s claims stating that such housing should be provided in the manner established at the federal level.
In both capitals, right up until 2020, children of the repressed were not even put on the waiting list. The general procedure for the provision of social housing requires applicants to live in the cities (subject to registration) for at least 10 years. Since 2020, under the influence of the unfolding campaign, the children of the repressed in Moscow have been put on the waiting list. However, they could wait another 15 years.
In 2018, the plaintiffs managed to get to the cassation courts of the Supreme Court of the Russian Federation. It rejected their claims against the Moscow government and rejected Vaipan’s case which demanded the recognition of Moscow’s law regarding the provision of housing for children of repressed children as invalid.
Having exhausted the possibilities in the courts of general jurisdiction, the plaintiffs were able to appeal to the Constitutional Court which held hearings in October 2019. On 10 December it issued Resolution No. 39-P. It recognized Article 13 on rehabilitation …in the sense given to it by law enforcement practice which prevents compensation for harm to rehabilitated persons. The Constitutional Court ruled that the Russian Parliament at the federal level as the issue concerns various subjects of the Federation should “immediately introduce the necessary changes to the current legal regulation based on the maximum possible use of available funds and financial and economic potential.”
On 14 July 2020, the government submitted a bill to the Duma “On Amending Article 13 of the Law regarding the Rehabilitation of Victims of Political Repression”. It was actually adopted on its first reading on 26 November 2020 and approved for a second reading. However, this bill would not solve the problem, since it only deals with putting the children of the victims of repression on the general (housing) waiting list.
In September 2020 a number of deputies proposed an alternative scheme that offered one-off cash payments to allow the children of those repressed to pay for housing themselves – at standard rates per square metre as approved by the Ministry of Construction and the Housing and Communal Services of the Russian Federation.
But the Duma rejected this draft on its first reading, and the issue of whether to pay compensation to only one survivor or for their entire family remained unresolved. At this stage, a year ago, everything was shelved – the newly formed Duma is not in a rush either. Memorial and the Institute of Law and Public Policy (“foreign agents”), as well as Grigory Vaipan, meanwhile, held press conferences and published articles about this issue in those media outlets which acknowledge that this constitutes a real problem.
A petition in support of the children of those repressed on the Change.org website collected more than 100,000 signatures. In January 2021, more than one hundred well-known public figures and artistic celebrities (among them journalists of Novaya gazeta) signed an open letter to the president, which was published.
Meanwhile, more and more children of those repressed joined the campaign having become aware of this opportunity. The whereabouts of their homes came as a source of surprise: in most cases, these are towns and villages, whose names are unfamiliar – places where their parents were sent, if indeed they had not been shot.
Not everyone was able to collect all the documents required for the legal procedures: evidence relating to their parents’ place of residence of around sixty to ninety years ago, or about their conviction and rehabilitation.
Meanwhile, Article 42 of the Code of Administrative Procedure (CAP RF) demands that there should be at least twenty claimants in order to submit a class action. This rather prohibitive bar was exceeded when the number of children of the repressed who managed to muster their documents reached 24, and even the recent death of one of them did not prevent the filing of a lawsuit.
It should be noted that the implementation of binding decisions of the Constitutional Court on bringing laws and law enforcement practice into accordance with the Constitution, when they relate to the Federal Assembly of the Russian Federation and the courts, represents a separate problem. This is further complicated by the less than cordial relations that have developed between the chairs of the highest courts, as well as between members of the Duma.
The Supreme Court has found itself in a delicate position, especially since it had already refused to protect the rights of the children of the repressed. And more and more “foreign agents” help them in this. Many aspects came together in this landmark case: politics, economics, law, history, and people’s interpretation of it.
People and the state… Is this the same state that passed the Rehabilitation Act in 1991? Or maybe the one that shot, imprisoned and exiled these people’s parents? That’s the question facing the Supreme Court and the State Duma.