| Judicial Decision |  | |
Derechos | Equipo Nizkor
| ||
| Judicial Decision | | |
Derechos | Equipo Nizkor
| ||
23May1995 - RUS
Ruling on the Constitutionality of Articles 21 and 16 of Law on Rehabilitation of Victims of Political Repression
In the Name of the Russian Federation RULING OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION
On the Case Testing the Constitutionality of Articles 21 and 16 of the Law of the RSFSR of October 18, 1991 On the Rehabilitation of Victims of Political Repression (as Amended on September 3, 1993) in Connection with a Complaint by Citizen Z.V. Aleshnikova
City of Moscow
May 23, 1995The Constitutional Court of the Russian Federation, consisting of presiding judge G.A. Gadzhiev, judges A.L. Kononov, T.G. Morshchakova, Yu.D. Rudkin, N.V. Seleznyov, O.I. Tiunov, B.S. Ebzeyev and V.G. Yaroslavtsev,
with the participation of citizen Z.V. Aleshnikova, who petitioned the Constitutional Court of the Russian Federation with a complaint, and representative of the State Duma of the Federal Assembly of the Russian Federation L.N. Zavadskaya; and the following persons invited to the session: from the Commission for Human Rights under the President of the Russian Federation ? A.T. Kopylov, from the Commission under the President of the Russian Federation for the Rehabilitation of Victims of Political Repression ? A.S. Novikov, for the Procuracy of the Russian Federation ? G.F. Vesnovskaya, and from the Ministry of Finance of the Russian Federation ? V.A. Shalayev,
taking guidance from Article 125 (part four) of the Constitution of the Russian Federation, clause 3 of part one, parts two and three of Article 3, clause 3 of part two of Article 22, Article 36, parts one, two and three of Article 74, part one of Article 96, Articles 97 and 99 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation,
has examined in an open session the case testing the constitutionality of Article 21 and 16 of the Law of the RSFSR of October 18, 1991 On the Rehabilitation of Victims of Political Repression (as amended on September 3, 1993).
The impetus for the examination of the case was the complaint from citizen Z.V. Aleshnikova against the violation of her constitutional rights by Articles 21 and 16 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression.
The basis for the consideration of the case was the discovered uncertainty in the question of whether or not the provisions of part one of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression conform to constitutional civil rights and liberties.
Having heard the report of reporting judge V.G. Yaroslavtsev, the arguments of the parties, testimony of a witness, the opinion of an expert, and statements of the persons invited to the court session, and having studied the materials presented, the Constitutional Court of the Russian Federation
established: 1. That the applicant < citizen Z.V. Aleshnikova, born 1931 > until 1942 resided together with her parents in the Stalingrad Oblast. In 1942 her parents were subjected to repression a second time through administrative proceedings as socially dangerous people, and in connection with this she and her family were forcefully removed from their place of residence.
In 1993 the parents of Z.V. Aleshnikova were rehabilitated by the Department of Internal Affairs of the Volgograd Oblast on the basis of clause "c" of Article 3 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression, and on the basis of paragraph 1 of part one of Article 21 of the same Law she was declared to have suffered from political repression.
Believing that political repression was applied against her directly, Z.V. Aleshnikova petitioned social welfare bodies and the Ministry of Justice of the Russian Federation with a request to recognize her as having been unjustifiably subjected to repression and to extend to her all the compensation envisaged for this category of persons in Article 16 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression and Article 110 of the Law of the RSFSR On State Pensions in the RSFSR. Her request was rejected on the basis of the fact that, as the time of the end of the term of repressive measures imposed on her parents, she had not yet reached the age of 16, from which age, under the legislation effective at that time, the corresponding type of political repression could be imposed. The Leningrad District People's Court of the City of Kaliningrad also refused to accept Z.V. Aleshnikova's application on the violation of her constitutional rights in connection with the application to her of the provisions of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression.
2. That the applicant petitioned the Constitutional Court of the Russian Federation with a request to declare unconstitutional the entire Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression. However, the Article as a whole may not be the subject of consideration in this case, since only the provision of paragraph 1 of part one of that Article, on the recognition of children who were located together with parents in places for incarceration, exile, banishment or at special settlements as having suffered from political repression, were applied to the applicant. On the basis of Article 97 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the complaint to the extent that it concerns the other provisions of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression is inadmissible and may not be examined in this case. Part three of Article 16 of the above-mentioned Law, referred to in the complaint, does not for this case have independent significance, since it refers to the norms of Article 21 and covers all of the categories enumerated in it of persons who had suffered from political repression.
3. The purpose of the Law of the RSFSR On the Rehabilitation of Political Repression, as indicated in its preamble, is the rehabilitation of all victims of political repression, the reinstatement of their civil rights, the elimination of other consequences of arbitrary actions and the provision of compensation within its power at this time of material and moral damages.
The recognition by part one of Article 21 of the aforementioned Law of children located together with their parents at places of incarceration, in exile, banishment or at special settlements, not as having been subject to repression, but as having suffered from political repression, does not correspond to that purpose, limits for such persons the possibility of rehabilitation, creates for them a legal status which is different as compared to those rehabilitated, and in particular reduces the amount of compensation envisaged. The legislation effective during the period when repression was imposed did not formally require the issue of decisions on the imposition of repression in relation to children who had not yet reached 16 years of age. However in essence these children were subjected to repression, and were actually subjected to coercive measures. The fact that they had not reached the age at which they could legally be held accountable at the time when repressive measures were unjustifiably imposed on parents does not bear significance in evaluating their legal status and may not serve as grounds for limiting their rights and liberties in the process of rehabilitation. Such children, forcefully moved to places of incarceration, exile, banishment or to special settlements, i.e. under conditions where they were clearly stripped of rights and liberties, by virtue of Article 1 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression must be recognized as having been subjected to political repression for political motives, with all of the consequences arising from this.
4. That the restrictions contained in part one of Article 21 of the Law of the RSFSR On the Rehabilitation of Political Repression are further compounded by the bodies entrusted with its application. The Procuracy of the Russian Federation and the Ministry of Foreign Affairs of the Russian Federation in their instructions, based on the legislation which was in effect during the period when repressive measures were imposed, take into account only the presence or absence of documentary confirmation of decisions on the imposition of repressive measures. In this respect, it is determined that children who had not reached 16 years of age or who were not registered in records at the places of the regimented settlement of parents may not be considered to have been subjected to repression. An analogous norm is contained in Article 1 of the Statute on the Procedure for the Provision of Allowances to Rehabilitated Persons and Persons who Suffered from Political Repression, as approved by Decree of the Government of the Russian Federation No. 419 of May 3, 1994.
Such an interpretation of the norm of the Law in fact leads to discrimination against victims of political repression based upon age, since it deliberately denies a certain age category the right to rehabilitation.
5. Thus, the provision of paragraph 1 of part one of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression, based on its substance and according to the meaning given it in practice, establishes unjustified and unfair distinctions (including those connected with age) in respect of a certain category of citizens declared to have suffered from political repression as compared with those unjustifiably repressed, despite the fact that the same repressive measures were imposed upon them on the basis of political motives.
The provision of part one of Article 21 of the aforementioned Law on the fact that children located together with parents in places of incarceration, in exile, banishment or special settlements are recognized only as having suffered from political repression contravenes Article 19 (part 1) of the Constitution of the Russian Federation on the equality of all before the law and the courts, as well as Articles 46 (part 1) and 52 of the Constitution of the Russian Federation, since it does not extend protection to the rights of those who suffered from abuses by authorities equal to that extended to those recognized as victims of political repression, and does not provide them access to justice and compensation for the damages caused.
The provision of paragraph 1 of part one of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression may also not be a ground for discrimination based on age or other characteristics in respect of citizens who suffered from political repression, nor for denying them judicial protection or their recognition as having been unjustifiably subjected to repression on the grounds envisaged in Articles 1 and 7 of the aforementioned Law.
This is also confirmed by the requirements of Article 26 of the International Covenant on Civil and Political Rights, which establishes that all persons are equal before the law and have the right, without any discrimination, to equal protection of the law. In accordance with the Declaration of Fundamental Principles of Justice for Victims of Crimes and Abuse of Power, adopted by the General Assembly of the UN on November 29, 1985, the term "victim" is understood to mean persons who, individually or collectively, were caused harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.
On the basis of the foregoing and taking guidance from part one of Article 71, Article 72, 74, 75, part two of Article 86 and Article 100 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the Constitutional Court of the Russian Federation
hereby rules: 1. That the provision of paragraph 1 of part 1 of Article 21 of the Law of the RSFSR of October 18, 1991 On the Rehabilitation of Victims of Political Repression (as amended on September 3, 1993) classifying children located together with parents in places of incarceration, in exile, banishment or in special settlements as having suffered from political repression but not having been repressed does not conform to Article 19 (part 1) and Article 52 of the Constitution of the Russian Federation.
2. That according to part two of Article 100 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation the case of citizen Z.V. Aleshnikova, which was resolved on the basis of the provision declared unconstitutional of paragraph 1 of part one of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression, shall be subject to review by the competent body in accordance with the established procedure.
3. That according to part two of Article 87 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation this Ruling shall serve as grounds for the revocation, in accordance with the established procedure, of the provisions of normative acts based on the provision declared unconstitutional of paragraph 2 of part one of Article 21 of the Law of the RSFSR On the Rehabilitation of Victims of Political Repression, or reproducing it or containing the same provisions. The provisions of those normative acts may be applied neither by the courts, not by other bodies or officials.
4. That it is incumbent upon the Federal Assembly of the Russian Federation to introduce amendments to the Law of the RSFSR On the Rehabilitation of Victims of Political Repression for the purpose of more fully restoring the rights of the children who are discussed in part one of Article 21 of the aforementioned Law, having removed the contradictions and discriminatory provisions which are not the subject of consideration under this case.
5. According to parts one and two of Article 79 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation this Ruling is final, not subject to appeal, shall enter into force without delay after its promulgation, and shall be effective directly.
6. According to Article 78 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, this Ruling shall be published in Sobraniye zakonodatelstva Rossiiskoi Federatsii, Rossiiskaya gazeta, other official publications of bodies of state authority of the Russian Federation, and also in Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii.
Constitutional Court of the Russian Federation
No. 6-PUnofficial translation by John Fowler, theRussiaSite.org. By way of: theRussiaSite.org
International Criminal Law:
Country List | Home Page
This document has been published on 28Mar18 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
