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M.I.ORLOVA,
lawyer, member of the lawyers’ group, Coordinating Council
for Assistance to Refugees and Forced Migrants
Each Wednesday we, two lawyers, receive not less than 30-40 people. They don’t have anything: no home, no money, no property, no nothing. Some of them have relatives in Moscow, others don’t, which makes their situation even worse. They come to get consultation on various legal questions, for example, compensation for the property lost (these are mostly refugees from Chechnya). But we not only consult on legal issues but also draw up applications and petitions to various official organizations, e.g. to the State Duma, and deputies’ inquiries. In addition, we lodge complaints about officials’ illegal actions and participate in court hearings. We explain to our visitors that they have the right to defend their rights in court because we believe that it is the only place where they can get at least something.
We have to persuade people that they should go to court because they are disoriented after what they have been through, and are more concerned about the problem of daily bread than anything else. Sometimes we succeed in persuading people to rely on law. Our experience, the response we get from the judicial bodies and case decisions enable us to judge about the practical application of the legislation on refugees and forced migrants, and how the laws intended to protect their rights work.
The Moscow passport bureaus do not comply with the federal laws. The Moscow Migration Service is guided by the Moscow City own legislation: resolutions of the governments of the Moscow City and Moscow Region and instructions of our Mayor which more often than not contradict the federal laws and the RF Constitution. The federal laws don’t work in Moscow. But the RF Government Resolution ¹ 713 of July 17, 1995 works.
I don’t know what laws and regulations work in other regions, for example, I don’t know whether there is a hygienic standard for a residential space where a refugee or forced migrant can be registered. I don’t know whether there is a regulation which says that a refugee or forced migrant can be registered at the place of residence of any of his/her relatives or only close relatives. The Moscow rules legalize these restrictions, that is why, on the basis of our draft letter a State Duma deputy made an inquiry to the General Prosecutor’s Office which pointed out the contradictions between the Moscow regulations and the federal laws. Let me inform you on the response from the Prosecutor’s Office as I think it could be of use to you.
General Prosecutor pointed out that restricting registration of refugees or forced migrants by a condition that there must be a 6 sq.m living space for each person or 10 sq.m general floor space, with the persons to be registered taken into account, runs counter to Article 6 of the RF Law on Forced Migrants. In view of the revealed contradictions the Moscow Prosecutor’s Office has been obliged to react.
If you come across the same restrictions in your regional practices, you can apply to a regional prosecutor’s office and refer to the above mentioned response from the General Prosecutor. The document is concluded by a very good phrase which may help the judges who handle such cases to get the point of view of General Prosecutor : «On the federal level the right of the mentioned citizens to be registered is regulated by the RF laws ‘On Forced Migrants’, Article 6, ‘On Refugees’, Article 5, as well as by the rules of registration of RF citizens of July 17, 1995. These legal regulations are a sufficient basis for protecting the rights of the mentioned category of citizens.» In plain words, General Prosecutor’s opinion is that we must stick to the laws and regulations established in the Russian Federation. So, when a refugee or forced migrant complaints that he/she is denied registration on the basis of the Moscow regulations (sometimes officials just put it as the «rules don’t provide for such registration» not even bothering to mention the relevant articles of these regulations) we go to court.
Let me cite several examples of court decisions when our solicitation was a success.
A married couple with two sons, refugees from Baku, came to Moscow in 1989 and in the end of it were registered as refugees. They were given the relevant certificates and in early 1990 got a job at the Moscow Refrigerator Plant, first the husband and wife, and then the sons. The wife’s profession was a teacher in chemistry and she soon quit her job at the plant and started to work at school. The plant’s administration and trade union committee passed a decision to give them a room at the family hostel. They got a certificate entitling them to a room in a three-room apartment. When the other rooms in this apartment were vacated the plant administration left the whole apartment with them and repeatedly sent petitions to the competent authorities asking to register them in it. There were also petitions from human rights activists and even from the migration service. Nevertheless, they got seven or eight refusals. They were not registered anywhere, only their refugee certificates had the address of the hostel typed in it. After Resolution ¹ 713 had been issued (it obliged every citizen to be registered) they found themselves in a very difficult situation. They have lived here for seven years, three members of the family are still working at the plant, but they are denied registration. They came to us. As a complaint about illegal actions can be lodged within one month since the day of getting an official answer, and it had expired by that time, we advised that they send another petition or an application for registration at the place of residence since a hostel, according to Resolution ¹713, falls in the category of residential space where a person can be registered. We told them that if they got an adverse answer, we’d file a lawsuit. Naturally, the answer in writing was negative. In addition, they were told the following: you are from another city, from Baku, and Moscow is a closed city, so the answer is «no». Registration was very important for them, not only because they wanted to be «legalized» but also because there is a resolution that the hostels which belonged to enterprises (companies) had to be transferred to the municipal housing fund and the persons permanently registered in them could get an official certificate which would seal their right to it. We took legal action. Solicitation was based on the following: first, in conformity with Article 27, Part 1 of the Fundamental Law, they have resided in Moscow on a legal basis (as they got RF citizenship and the status of forced migrants), which means that they have the right to freedom of movement and choosing a place of residence (RF law «On Citizens’ Right to Freedom of Movement»); second, they got this residence on a legal basis, in connection with the continuous labor relations; third, they are living in a hostel, and according to the RF Government Resolution ¹ 713 of July 17, 1995 and Resolution of the Governments of the Moscow City and Moscow Region of December 26, 1995, ¹1030-43, hostel is a place of residence where a person can be registered; and, finally, we referred to Article 20 of the Civil Code which gives a definition of «residence» as a place where a person lives permanently or most of time. They have already lived there almost seven years. The court hearings were attended by the public prosecutor which is the usual practice in such cases (I had five or six similar cases). The prosecutor gave his opinion that the plaintiff must be registered, and the court decision recognized as illegal the actions of the Passport Bureau of the Cheryomushki District Department of Internal Affairs, and it was obliged to register them at the place of residence. After the court decision had been pronounced the wife burst into tears. On the next day she was admitted to a hospital with the diagnosis «severe heart attack, or infarction». If it hadn’t been for those seven negative answers, if the laws of the Russian Federation had been complied with, she would probably not have to stay in hospital for four months. She is still unable to work. Imagine how much she had been through if she had a heart attack after a favorable court decision.
Let me tell you about another case, a woman who was first a refugee and then a forced migrant, with three children. She has two diplomas certifying that she graduated from two institutes. She is an RF citizen, has a forced migrant certificate and works in Moscow as a janitor, because as such she must be given an apartment. She got a room at a family hostel, and she was also denied registration. We applied to the court. The head of the local passport bureau didn’t appear in court but presented a written explanation in response to our complaint. It said that the woman came from another city and the hygienic standards of her place of residence did not meet the requirements established by the relevant resolution of the Moscow Government. The case was tried in court and we won it. We were allowed to appear in the case on behalf of the Civil Cooperation Committee. This was confirmed by a power of attorney and a protocol. But some judges allege that we have no right to appear in cases, and we have to remind them that there is Article 147 of the Civil Judicial Code which allows representatives of public organizations to voice their opinion in a legal case.
Another case was a refugee from Tadjikistan. He failed to get either the status of forced migrant or Russian citizenship. For three years he lived with his old aunt who gave him her one-room apartment as a testamentary gift. His mother is 73, she is a 2nd category invalid, also a refugee from Tadjikistan. When after his aunt’s death he applied for registration at the local registration office (he had such a right both by the Moscow regulations and by Resolution ¹ 713 because he became an owner and had to be registered) he was given the following answer: we’ll be happy to register you but first pay 35 million rubles because foreigners pay 500 minimum wages for registration. I wrote a complaint for him and stressed that in conformity with Article 29 of the 1951 Convention neither taxes nor any other duties levied officially on refugees can’t be higher than those levied on own citizens; moreover, even the demand that the plaintiff pay 50 minimum wages (like Russian citizens do in such cases) is illegal because a relevant RF law provides for a single government fee for all. There is no mention of collecting registration fees in any other RF law. The legal decision was that the man must be registered.
I’d like to tell you about one more case, a unique one, the case of Pavlina Filippova. She lived in Chechnya, fled to Moscow and lived there alone, trying to survive as she had very little if any means of subsistence. For almost three years she tried to draw the officials’ attention to her lot. She would apply to the Federal Migration Service, Moscow Migration Service, etc., but in vain. She found asylum in one of the Moscow churches where she lived in a van in the backyard. We didn’t appear in the case but we helped her in other ways, for example, draw up complaints. It so happened that her case had to be tried in the Tagansky Court (Moscow) by Judge Litvinov, a wonderful man and a very good lawyer. It was the first case of granting a refugee status, of registration, of compensating for moral damage which was tried in court and formally won. The judge thoroughly carried the case and considered the plaintiff’s demands. Right before the case was brought in, an amendment to the Law on Forced Migrants had been passed, and the judge didn’t hesitate to refer to it. The court decision was that Filippova had to be registered, given a refugee status and compensated for moral damage as for three years she would be sent round various official departments. The moral damage had to be compensated by the Moscow Government, the Federal Migration Service and the Moscow Migration Service. Moreover, the case decision said that the court finds it expedient to go beyond the plaintiff’s demands and, in accordance with Article 195 of the RF Civil and Judicial Code, obliges the Moscow Government to give her within one month a place of residence because she is alone and disabled, and in conformity with the Law on Forced Migrants, Article 7, such people must be given a place to live in from the municipal or social funds. This was supposed to be a happy end but, alas! The court decision was ignored. The defendant was two or three months late with an appeal (I don’t remember why, probably their lawyer was on vacation or whatever other reason). The judge refused to restore the cassation term saying that there was no good reason why this should be done. The judge summoned the defendant and demanded an explanation why the court decision was ignored. After that he sent a letter to the relevant authorities. And finally, Filippova applied to the Prosecutor’s Office asking to file a criminal suit against the officials who don’t comply with the court decision. The Prosecutor exercised his supervisory powers and lodged a complaint. For another year Filippova would go round all sorts of instances and ask Judge Litvinov to help. But what could he do? The decision was ignored, full stop. The Prosecutor’s Office doesn’t sue officials. The defendant’s complaint was signed by the Mayor of Moscow, and the Presidium of the City Court canceled the previous decision alleging that the casework was insufficient as nobody bothered to check on the van in which Filippova lived, who owned it and how she happened to live there, on the church’s territory. It was found out later that the church’s priest received her at the request of human rights workers and before that she had for a year lived at a railway station. Another point of dispute was that in her application to the migration authorities she wrote that one of the reasons why she had to flee Chechnya (in addition to the usual hardships and sufferings) was that the Chechen authorities wanted to place in a hospital for mental patients. The Presidium of the City Court put it in a different way: that she had to be hospitalized as a mental patient but managed to escape and is now seeking asylum in Moscow being a mental patient. The case is to be called on but its outcome can’t be predicted.
There were also cases when judges didn’t grant our lawsuits.
One of the issues of the Lawyers’ Herald carries an article written by Svetlana Alekseyevna Gannushkina. She wrote about the case of Lukashenko where she appeared on behalf of the committee. The complaint consisted of two parts: one about the refusal to register and give a refugee status to the plaintiff and the other about the illegal actions of the Moscow Government who approved a resolution which contradicts the federal laws. The judge refused to reach a positive decision on the first part and referred to the Mayor’s resolution, that refugees can be registered only at the place of residence of close relatives, and also to the stipulations of the Moscow Charter. There was no mention of the federal laws or the RF Constitution. The second part was not even tried in court. We appealed against this decision in the City Court. But its ruling was in favor of the previous decision.
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