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Yu.M.SHMIDT,
lawyer, member of the Russian Human Rights Committee
I don’t know for sure how many Afghan refugees there are in Russia. If I am not mistaken, in St.Petersburg there are some three thousands of them. And until 1994, when the RF Government issued a resolution on the legal procedures concerning the people who apply for the refugee status, the only legal document an Afghan refugee had was a certificate given to him/her at the UNHCR mission.
This wasn’t enough for legalization in Russia but there was an amicable agreement between UNHCR and the local authorities that the latter more or less shut their eyes to it. Nevertheless, when the relevant government resolution was issued, the authorities started to accept applications and register them as people who seek the refugee status.
Then there was a shower of refusals issued well after the legally established deadline for official response. They all referred to Article 1, not even mentioning the relevant part. As far as I know, by the end of 1995 there were already about eighty refusals and almost all «refuseniks» decided to sue the authorities. Their complaints were accepted at the St.Petersburg Central District Court as the Migration Service is located at the Central District. This was also an agreement with the authorities, an agreement which ran counter to any legal norms. The cases were suspended as in the fall of last year it was decided that, in order to set a pattern, the first one or two cases would be tried at the St.Petersburg City Court of general trial jurisdiction. The district judges were quite happy about this decision. This relieved them of all responsibility as the City Court had to give them the bearings so that they would try such cases as prescribed. Well, in October or November, 1995 the first such case of Abdul Khakim Zakhet, a former Afghan security man whose last job was head of the operative unit of the famous prison Cherakhma, was presented in the court.
The case was tried at the city court of first appearance. The legal proceedings took a week. Among the agencies involved were the City Migration Service, Mayor’s Office, Passport and Visa Service, and what not. The judge was obviously prejudiced and prepared for an adverse case decision. She explained it to me as follows: «You’ll appeal against our decision, and the Supreme Court will have the final say.» In the course of the week-long hearings we struggled with all those «concerned» agencies represented in the case by various officials, and the judge’s attitude to the case began to change. Finally, it changed so radically that she was unable to reject our claim but lacked the courage to grant it.
She was wise enough to persuade the Migration Service to conclude an amicable agreement. This agreement was very strange as the Migration Service agreed to rescind its decision to deny the refugee status and we agreed to close the case. That is, we were back again where we’d started from. We didn’t lose anything as in case of a new refusal we could appeal against it. It is noteworthy that the Migration Service committed itself to review twenty more similar cases concerning former Afghan security men. But what is even more interesting that a year has elapsed and all these people, including my client Abdul-Khakim Zakhet, are still waiting for either a decision on granting the refugee status or another refusal. I think this is evidence in favor of the idea which I have been advocating for a long time, namely: Afghan refugees must be treated differently from all other refugees. Our authorities must make a political decision based on the moral commitments of Russia as the legal successor of the USSR, before the people who grew up in conditions of the occupation regime and supported it. Because the majority of those who seek the refugee status are young people who served that regime because they didn’t know any other and didn’t have a real choice. They all studied at the Soviet civil or military institutes. Back in Afghanistan, they would be appointed to rather high posts in the state bodies, the army or the state security service. It goes without saying that after the collapse of the regime and withdrawal of the Soviet troops their lives were in danger.
I would like you to remind that de Gaulle granted French citizenship, in bypass of the existing laws, just by a voluntary decision, to all partisans of the occupation (or colonial, I don’t remember for sure) regime; that the United States granted the right of asylum to all Vietnamese who found themselves in the risk group after the conclusion of peace (or, in plain words, after the defeat of South Vietnam in the war with North Vietnam). To my mind, Russia has to follow suit and treat the Afghan refugees accordingly.
Apparently, this problem is being discussed somewhere in high places because the St.Petersburg Migration Service shows concern over this problem, at least in words. I have information that an initiative group of St.Petersburg Duma deputies intends to make an inquiry to the Federal Migration Service which contains a proposal to get the RF Government make a political decision concerning the Afghan refugees.
At present there are dozens or hundreds of Afghan refugee cases suspended hopelessly in the St.Petersburg courts. It is hard to say how much time it will take the judges to handle these cases. At first I thought that they were so easy that several cases could be conducted simultaneously. But the first one was tried for a week. Another case, a fresh one, which I’ll tell you about a bit later, took two working days in the court. Given the huge workload of judges, it’s a shame to waste time trying the cases which in my opinion can and must be solved in a different way. Their cases were given priority in courts and you just imagine how it all looked to other claimants when they had to make way for those hated «Caucasians» as they saw them. It was a hard experience to see the hatred in the eyes of this crowd of cheated investors and other miserable people.
Well, the first case was tried in St.Petersburg and there was even a court decision. It was reached on the 23rd of October, 1996. Judge Yelena Vlasova, a nice young woman, started it all by accepting the complaint of Afghan citizen Abdul Gafars lodged at the Vyborg District Court. Before that all these cases used to be brought to the Central District Court where the City Migration Service is located. The latter strongly objected, on the stage of pretrial preparation, to the case being transferred to the Vyborg Court located at the district where the plaintiff lived. But the judge, in strict conformity with the Law on Appeal against Illegal Actions of Officials or Official Bodies, accepted the complaint. She rejected all explanations that there were lots of such cases, all in another court and that it had been agreed to try them there. The judge was absolutely unprepared to carry this case, both politically and professionally. She knew little if anything about the current situation in Afghanistan, had no idea of UNHCR, and I suspect that this was the first time that she read the Law on Refugees, to say nothing of the numerous international conventions, UN procedures, etc. We had to bring her all these documents and I think she was doing her homework as there was no time for reading those piles of literature in the court. But her case decision was absolutely professional and legally substantiated. She didn’t cite the international legal documents but it was clear that she read them all and that they underlay the case decision.
Well, what factors were decisive in this case? It is worth mentioning that the Migration Service was represented by itself and by nobody else. The judge didn’t think it necessary to summon the people from the Mayor’s Office, Passport and Visa Service, the Governor’s Office, or any other services or offices. She was quite satisfied that the defendant was represented by the Migration Service alone.
The Migration Service team all came to the court, leaving nobody at home and prepared to help each other. That was a real battle.
If I am not mistaken, in 1995 the Federal Migration Service sent out a letter and a reference document prepared by the Ministry of Foreign Affairs, to all its local offices and branches. I could never lay my hands on these documents but I know what is in them. They say that the situation in Afghanistan is normal, nobody is threatening anybody, but there are some restless people who are eager to leave for Russia due to economic reasons. They are better off in Russia as they can do business, mostly trading, evade paying taxes, regularly leave for third countries, etc. Thus, they are not refugees but economic emigrants. Naturally, they all must be denied the refugee status.
In the course of the hearings it was found out that the claimant came to the Soviet Union in 1990, studied at a military academy and didn’t return home after the overthrow of the Najibulla regime. But the Law, unlike the Convention, says : «people who were forced to leave because they feared...» Both the judge and the public prosecutor (who, by the way, also asked for the available legal documents which I presented to him) had one and the same doubt: «But he wasn’t forced to leave». I explained that the Convention also mentions this category of refugees as «people who were forced to stay in another country because certain events occurred in the country of origin». Anyway, I tried to prove that this doesn’t contradict our Law because «forced to leave» doesn’t mean «forced to leave at a time when something occurred there» but «forced to give up the idea of returning», and the latter can be considered as the true moment of «leaving one’s country for another one».
When I gave this explanation and showed some legal documents, the prosecutor at once found arguments in favor of our case. This also helped to dispel some of the judge’s doubts.
What arguments were mentioned in the case decision? First of all, it rightly stated that the burden of proving the refusal’s legality lies with the Migration Service. Moreover, the decision said that the claimant fulfilled all the duties of an applicant for the refugee status. She listed all of them required by the Law and relevant regulations, and added that she had no questions to the claimant as far as this part of the claim is concerned. Moreover, she said that the claimant adduced evidence to support his case (a bit later I’ll tell about it in detail), while the Migration Service failed to produce evidence to prove the legality of the refusal. I think that as this decision was legally enforced it can serve as a sort of precedent inasmuch as it concerns the correct interpretation of the Law on Refugees and the parties’ responsibilities. The judge mentioned, among other things, the danger of being persecuted in case the claimant returns to his homeland. She also noted three main factors: that he was a member of the People’s Democratic Party of Afghanistan, served in the Afghan army and studied in the Soviet Union. The decision also cited the letter of a UNHCR advisor on legal defense of October 21, 1996, to lawyer Yu.Shmidt on the situation in Afghanistan, with a list of categories of endangered people. In spite of the personal address «Dear Mr.Smidt», the official UNHCR form and the advisor’s signature produced the desired effect on both the judge and the prosecutor. This document is referred to in the case decision.
There were rather interesting moments in the proceedings. All of a sudden the prosecutor said that much had changed since the time when the letter of the Ministry of Foreign Affairs was circulated, and it would be appropriate to ask for new information on the issue from the Ministry. He meant that Talibs became particularly active at that time. I answered that this would be like in a dispute between a husband and a wife as to whom the child would stay with, when the information on how the child would feel at his father’s should be asked from the father himself. The Ministry of Foreign Affairs is a government body and expresses the government’s position which, to put it mildly, doesn’t agree with law, to say nothing of ethics or moral scruples. The prosecutor didn’t insist. We put on the judge’s table our information on the situation in Afghanistan as it was at that time when Talibs entered Kabul. We also made use of newspaper messages as, in conformity with the Civil Judicial Code, they can be referred to as the generally known facts. Anyway, we didn’t have to adduce more evidence to prove that the situation in Afghanistan took a turn to the worse. In addition to the information presented by the claimant himself, a letter from the UNHCR mission provided more evidence of the danger threatening him. Our two witnesses were questioned. We also produced letters in Persian from the claimant’s two relatives that he’d be in danger in Afghanistan, they were immediately admitted in evidence by the court. We had the translation of the letters verified and enclosed the envelopes to prove that the letters were genuine. And all this was admitted in evidence to substantiate the court decision.
The last argument was nicely formulated in the decision: «The argument of the Migration Service that the claimant didn’t produce objective evidence of the presence of threat, but only indicated this circumstance, cannot be accepted by the court as it runs counter to the second part of Article 6 of the Law (meaning the Law on Appeal against Illegal Actions — Yu.Shmidt) according to which a citizen is relieved of the responsibility to prove the illegality of the action he appeals against. (This concerns the burden of proof. — Yu.Shmidt.) The Law on Refugees doesn’t oblige the claimant to do it either.»
When we heard this decision we were sure that the Migration Service would appeal against it but it didn’t.
I personally mailed this decision to the Migration Service. The decision itself sounds as follows: «To recognize as illegal the decision of the St.Petersburg Migration Service ¹__ of__ to deny the refugee status and to oblige the St.Petersburg Migration Service to register Mr.___ as a refugee in the Russian Federation.»
So far this is the only case we won.
These cases are rather specific because the Afghan refugees do not want to bring them to court. They are afraid of refusals and subsequent sanctions. That is why they are happy when the cases are suspended. When I was given a privilege by the City Court to choose the first case which had to create a precedent, I chose the most advantageous from the point of view of defense: a case of a former security man. But they all would be glad to be as far from the front line as possible because, I repeat, they are afraid of getting a refusal.
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