Restitution Discussion Group Archives
| Sender: |
Anatol Tshchapov |
| Date: |
Sun, 28 May 2006 21:59:41 +0400 |
| Re: |
From Russia/letter 2: Memorandum on the Problem of Reinstating the Rights of Actual Owners |
Memorandum on the Problem of Reinstating the
Rights of Actual Owners
Russian actual owners proved to be the first victims
of the state-sponsored crimes and power abuse.
Due to their social and class background, they were altogether
deprived of all kinds of civil and ownership rights. According to the
definition provided by the “Declaration on the Justice Basics for
Victims of State-Sponsored Crime and Power Abuse”, they are the
“victims”. In accordance with p.2 of Clause “A”
of this Declaration, “an individual can be regarded as a “victim”
irrespective of having the fact of his or her detention or bringing to
trial verified. Close relatives of those victimized because of power abuse
are also regarded as “victims”.
However, in order to deny the “victims” any
access to legal proceedings and block indemnification procedure seeking
to compensate for the damage caused by unlawful actions of authorities,
Russia’s Interior Ministry, General Prosecutor’s Office and
the Supreme Court of the Russian Federation have adopted a joint Instruction
No. 34/5-893, ruling that Russian courts should not term as political
repression the deprivation of any individuals, enjoying any ownership
rights, of their voting rights, because such individuals are prohibited
to have their ownership rights restored for their property confiscated
by the State as well as any other form of compensation. According to this
Instruction, the suits seeking to restore individual’s rights are
to be formally processed in compliance with the Constitution of the RSFSR
as of 1918 and 1924, decrees by the Soviet authorities “On Reversing
the Private Ownership Right” and “On Reversing the Succession
Right”, clause 16-1 of the Law “On Rehabilitation of Victims
of Political Repressions”, Provision No. 926 (concerning exclusively
rehabilitated individuals) and Instruction No. 34/5-893. Such court actions
based on the Instruction rather than the Law are in violation of Clauses
199 and 202-1 of the Civil Code of the Russian Federation, which clauses
indicate that “claims seeking to restore any violated rights are
to be accepted and considered by courts regardless of whether or not the
legal action limitation has expired. Such cases are not subject to force
majeure (the period of time under the Soviet legislation adopted during
the years of political repressions, laws applicable before the Constitution
of the Russian Federation as of 1993 took effect). In doing so, existing
Russian government and courts prevent “victims of state-sponsored
crimes and power abuse” from enjoying their constitutional rights.
Therefore we have no right to access to justice and are barred from restoring
our violated rights, as well as being compensated and indemnified for
the damage caused to us by acts of authorities.
To block any access to justice, an additional clause
16-1 was introduced to the Law “On Rehabilitation”, which
condemned acts of authorities as “terror lasting for many years,
being incompatible with the very notion of law” and guaranteed it
to ALL VICTIMS that they would be cleared of all the consequences of arbitrary
rule they had suffered. This additional clause 16-1 prohibits the return
of allegedly nationalized property – based on the applicable “legislation”
enforced during that period of time, that is, as of 1918. It goes without
saying that Russia suffered then a compulsory expropriation by means of
violence rather than nationalization. However, in Clause 16-1 there is
no mention of compulsory expropriation by means of violence. Instead the
term “nationalization” is used, which contradicts Article
35 of the Constitution of the Russian Federation and Clause 2-7 p.3 of
Article 235 of the Civil Code of the Russian Federation. At present, it
is therefore prohibited to solve problems related to restoring the rights
violated “based on the legislation applicable during the period
of massive repressions”. The legal basis for this prohibition is
found in Part 2 of Section 2 of the “Final and Transitional Provisions”
of the Constitution of the Russian Federation, indicating that “laws
and other legal acts applicable within the territory of Russia before
the present Constitution came into effect, apply in the part which does
not contradict the Constitution of the Russian Federation”.
We deem it as illegitimate and irrelevant that all of
the above mentioned legal acts related to cases seeking the restoration
of violated rights should apply to our current writs. The above mentioned
legal acts related to cases seeking the restoration of violated rights
include the following:
a) Decree by the Soviet authorities “On Reversing
the Private Ownership Right in RSFSR” and Decree “On Reversing
the Succession Right”, applied in case of lawsuits filed by the
following individuals: E.M. Vospanova, O.S. Bimman, A.N. Firsanov -
to name but a few. In accordance with Part 2 of Section 2 of “Final
and Transitional Provisions” of the Constitution of the Russian
Federation, “laws and other legal acts applicable in the territory
of the Russian Federation before the present Constitution took effect,
apply in the part not contradicting the Constitution of the Russian
Federation”. Applying the decrees by Soviet authorities, which
are formally not determined as void and null, contradicts the existing
Constitution of the Russian Federation (RF), because it does affect
the succession right protected by the State (see Ruling by the Constitutional
Court on the Claim Filed by Mr. A.B. Naumov, Bulletin of the Supreme
Court RF, issue No. 5, as of 1999, page 5).
b) Constitution of RSFSR of 1918 and 1924, which was
expressly applied by Khamovnichesky court to the case of E.M. Filatov.
Applying the RSFSR Constitutions of 1918 and 1924 contradicts Part 2 of
Section 2 of “Final and Transitional Provisions” of the Constitution
of the Russian Federation.
c) Law “On Rehabilitation”, which is discriminating
against “victims of state-sponsored crimes and power abuse”
and does not solve the problem of restoring property rights violated
by acts of authorities. During the Convention of Innocent Victims of
Political Repressions held in Moscow City Hall, Mrs. G.F. Vesnovskaya,
a rehabilitation specialist, said in a statement that Part 2 of Clause
1 of the Law “On Rehabilitation” contains “a term
which is not a legal notion” - “as well as
another limitation …”, so it can not be applied by courts
and indeed is not applied. Previous comments by the Constitutional
Court saying that “the law does not create any barriers for restoring
the rights of any and all individuals who suffered any form of political
compulsion” are not true.
d) Resolution of the RF Government No. 926 as of 12.08.94.
on establishing the “Procedure for Returning Property Illegally
Confiscated … in Connection with Political Repressions to Citizens”
applies only to those rehabilitated. Illegally confiscated property
must be returned to everyone it was “misappropriated” from
– not just to those whose rehabilitation was endorsed by the FSB.
In fact, illegal confiscation of property is in itself a crime and power
abuse;
e) Instruction No. 34/5-893, addressed to courts which
prohibits to regard it as a form of political repression depriving individuals,
possessing any kind of property, of their voting rights. Recently there
are a number of books such as “Deprivation of Voting Rights in
Moscow in the 1920s and 1930s” available, as well as “Zvenya”
almanac (see Article “Lishentzy” (The Deprived Ones), irrefutably
proving that depriving one of his/her voting rights is violation of
all inalienable civil rights as follows:
All of the above mentioned “legal” documents
applied to cases seeking the restoration of violated rights of the following
individuals: E.M. Vospanova, M.G. Shchennikova, A.N. Firsanov, Y.N. Solovyova,
O.S. Bimman, E.M. Filatov, Y.L. Zhdanov and many other victimized legitimate
heirs.
Recently, in order to hinder restoration of violated
rights, courts are ordered to have “victims” prepay a 3-percent
tax on the sought property. No wonder, children and grandchildren of legitimate
owners robbed twice by the state are destitute pensioners today and therefore
they are not in the position not only to pay the 3-percent tax, but even
to provide for a decent living in their old age.
In our petitions submitted to legal institutions, Constitutional
Court of RF and President of RF, we have proved that courts applying decrees
of Soviet authorities on reversing the private ownership right and succession
right, articles of the RSFSR Constitution of 1918-1924, Clause 16-1 of
the Law “On Rehabilitation”, Provision No. 926 and Instruction
No. 34/5-893, do violate constitutional rights of “victims of state-sponsored
crimes and power abuse” and their legitimate heirs for the following:
a) fair litigation within reasonable period of time by
impartial judges, which is guaranteed by the Constitution of RF, Article
199, 202-1, 1102 of the Civil Code of RF, and Article 6 of the European
Convention for Protection of Human Rights – since all of “court
hearings” considering the writs are just a matter of formality,
with the outcome predetermined by their internal instructions rather than
laws;
b) the right for indemnification by the state of the
damage caused by authorities, which indemnification is guaranteed by Article
53 of Constitution of RF;
c) compensation of the caused damaged guaranteed by Article
52 of Constitution of RF;
d) the succession right guaranteed by Article 35 Constitution
of the RF and Article 532 of the Civil Code of RF to all legitimate heirs
indiscriminately;
e) restoration of violated rights guaranteed by Articles
1, 8, 12, 16, 17 of the Civil Code of RF;
f) right to protect a violated right regardless of term
of action limitation guaranteed by Articles 199, 202 of the Civil Code
of RF;
g) right to be recognized as Russian owners, having
suffered a loss from state-sponsored crimes and power abuse, and victims
of political repressions thus being denied the right for compensation
of incurred moral and material loss guaranteed by the Law “On
Rehabilitation of Victims of Political Repressions” and Resolution
No. 6-p as of 23.05.95. by Constitutional Court. Having violated the rights of fathers and grandfathers,
the State also violated the succession right of grandchildren and great-grandchildren
because this infringement is continuous.
All the above mentioned is to indicate that guarantees
provided by Articles 35, 52 and 53 of Constitution of RF, as well as Articles
1, 8, 12, 16, 532, 199, 292-2 of Civil Code of RF appear to be altogether
crossed out, so that Russian citizens, mainly of rural origin, that have
created Russia’s national wealth and fame still shared by Russian
citizens, are deprived of the right to have their violated rights restored,
to be recognized as “victims”, and to have a fair compensation
for their property exploited and sold out by the Russian State over 75
or 80 years.
Attachments:
1. Ruling by Tverskoi intermunicipal court as of 16.08.95
on the case of E.M. Vospanova concerning restoration of her violated succession
right and vesting her ownership right for vacated apartment of her parents.
Based on decrees of Soviet authorities, Provision No.
926 and the Law “On Privatization” the restitution of rights
has been denied. E.M. Vospanova’s grandfather was I.M. Morozov –
a major Moscow-based baker, house builder, and landlord. He was also elected
to Moscow City Hall and was member of the Construction Commission. In
accordance with the RSFSR Constitution of 1918, he was deprived all of
civil and property rights. Without being formally accused and put to trial,
his property was confiscated by the State under compulsion. Having been
repeatedly summoned to the Extraordinary Commission, he was taken from
his home during the period of the Red Terror in 1919. His file is kept
in archive of Directorate of Security Ministry for Moscow and Moscow region
(reference No. 10/A-2710 as of 30.09.92). His fate has been concealed
until now, and his granddaughter was refused to have his death confirmed.
His wife – M.N. Morozova – and his daughter - M.I. Morozova
born in 1914 - due to their social and class background were deprived
of all civil and property rights and were still living in their own apartment
like paupers sharing it with another 16 tenants being total strangers
to them. They lived there “until their compulsory eviction to Kalinin
region”. E.M. Vospanova was born at her mother’s new residence
after her eviction and subsequent exile. I.M. Morozov developed the following
4 properties for Moscow located at: Tzvetnoi Bulvar 25; corner of Trubnaya
str. 9/10; Ostozhenka str.32; Nizhegorodskaya 18. He also commissioned
a 3-storey building to house two of the city colleges (now the building
houses Tverskoi intermunicipal court). The yards of those buildings could
have set standard for a closed residential area even today. They had all
kinds of amenities for Muscovites, and Morozov’s brand bread was
very cheap and extremely popular with common people. Documents proving
the above mentioned were submitted to the court.
2. Tverskoi intermunicipal court ruled to deny M.G. Shchennikova
restitution of her succession rights until she submits a certificate confirming
the rehabilitation of her grandfather A.G Shchennikov who owned a restaurant
at Belorusski Railway Station (Moscow). He was deprived of all civil and
property rights and was forced to vacate his own home, as being divested
of his voting rights according to the Constitution of 1924, and finally
moved to his private home located in Zhavoronki, Moscow region. Eventually,
he was also evicted from that home as a “deprived one”. Perovski
intermunicipal court (Moscow) ruled on 23.9.96 that A.G Shchennikov was
indeed evicted. However, it refused to have him rehabilitated on the grounds
that he was evicted along with his five children according to the Constitution
of 1924 as the one deprived of his voting right. The judges’ understanding
is that such eviction did not prove to be a political repression.
3. Grandfather of O.S. Bimman has been missing since
the time of the Red Terror, his private home being appropriated by the
State. His son was exiled from Moscow. O.S. Bimman is a person displaced
under compulsion, she is even a refugee. Having returned to Moscow, she
has no way to reside in her own home, and being an elderly person she
has to move around renting flats. Krasnopresnenski court refused to restitute
O.S. Bimman’s violated rights based on decrees of Soviet authorities
and the Privatization Law.
4. Khamovnicheski court (Moscow) ruled to deny restoring
E.M. Filatov’s ownership rights over the house purchased by his
great-grandfather. The ruling was based on the Constitution of 1918. Filatov’s
family currently resides in their own home but he was denied acknowledgement
of his ownership right, since the plot holding his home was already sold
by the Moscow Government and they try to evict Filatov.
5. Y.V. Karpov, M.S. Khludova, L.S. Kovylina were refused
the acceptance of their claims because they failed to pay, as required
by the court, the 3-percent levy on their property confiscated by the
State from their families 80 years ago.
Enclosed are the court rulings on the above mentioned
cases.
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