Recognition of a citizen as a victim of political repression

           Cases of this category are considered in the manner prescribed for cases of establishing facts of legal significance, in compliance with the requirements of Article 306 of the CPC RK (only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to recover lost documents).

             The applicants submitted applications to the courts with various demands:

recognition as a victim of political repression;

recognition of victims of political repression;

on the establishment of the fact of the use of repression;

on the establishment of the fact of living in a special settlement and recognition as a victim of political repression.

on establishing the fact of recognition as a victim of political repression;

on establishing the fact of being in a special settlement;

on the establishment of the fact of being in a special settlement and recognition as a victim of political repression;

on the establishment of the legal fact of the use of political repression in the form of birth during the period of the parent's stay in a special settlement;

on the establishment of the fact of recognition as a victim of political repression and rehabilitated on the establishment of the fact of the application of measures of political repression, recognition as a victim of mass political repression;

on the establishment of the fact of forced resettlement for political reasons and being in a special settlement; on the establishment of the fact of forced resettlement;

on establishing the fact of repression; on establishing the fact of political repression.

             1 application – by the Talgar District Court of the Almaty region. The validity of the ruling of the judge of the Zhetysu District Court dated April 27, 2015 on the refusal to accept the application of Mr.N., as rehabilitated by Decree of the President of the Republic of Kazakhstan dated December 12, 1991 No. 540 "On the rehabilitation of citizens held accountable for participating in the events of December 17-18, 1986 in Kazakhstan", a participant in the events of December 17-18 1986 in Almaty, there is no doubt.

Whereas, on the contrary, the validity of the ruling of the judge of the Talgar District Court of the Almaty region dated August 27, 2015 on the refusal to accept the application of Ms. K. on the establishment of the fact of the use of repression is questionable.

The acceptance of Ms. K.'s statement on the establishment of the fact of the use of repression by the judge was refused, citing the fact that it is not subject to consideration and resolution in civil proceedings.

The judge's ruling clarified the provisions of Articles 8, 10 and 12 of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression" dated April 14, 1993, from the meaning of which it follows that the applicant should contact the prosecutor's office, and if she disagrees with the decision of the prosecutor's office to refuse to issue a certificate of rehabilitation, she has the right to to appeal in court.

In the previous summary of cases of this category for 2014, it was pointed out that the preliminary appeal of interested persons on the issue of rehabilitation to the prosecutor's office is not a mandatory pre-trial dispute resolution procedure and does not indicate that the application is not subject to consideration and resolution in civil proceedings and is not grounds for refusal to accept such applications.

At the same time, it follows from the text of Ms. K.'s statement that in April 2015 she applied to the Prosecutor's office of the Almaty region, and she was refused a certificate of rehabilitation and recommended to go to court to establish the fact of the use of repression. Thus, it is assumed that Ms. K.'s application should have been accepted by the court and considered on its merits.

 

The practice of adjudicating cases in this category. According to statistics for 2016, 75 cases of this category were considered with a decision, of which 65 decisions were made to satisfy applications and 10 cases were refused.

In the context of the regions, these data are reflected in Table No. 2. In accordance with part 1 of Article 224 of the CPC RK, the court's decision must be lawful and justified.

According to part 5 of Article 221 of the CPC RK, the reasoning part of the decision must specify the circumstances of the case established by the court; the evidence on which the court's conclusions on rights and obligations are based; the arguments on which the court rejects certain evidence, and the laws that guided the court.

A study of the decisions of the courts of first instance has shown that the decisions are mostly well-founded and motivated.

In the previous summary of cases considered by the courts of the republic for 9 months of 2015, it was indicated that the practice of considering cases of this category in Atyrau and Kyzylorda regions did not correspond to the judicial practice of other regions and the following examples were given:

Thus, by the decision of the Atyrau City Court of the Atyrau region of May 21, 2015, the application of Mr. L., born on November 18, 1946, born in the village, was denied. Chkalov, Baksai district, Guryev region, on establishing the fact of kinship relations and recognizing him as a victim of political repression from 1946-1956.

In rejecting Mr. L.'s application, having established that the applicant's parents had been repressed in 1937, had been released in 1956, and the applicant L. himself had been born in 1946 in the Guryev region, the court of first instance pointed out that "the presence of persons for political reasons in places of deprivation of liberty, exile, expulsion or special settlements" and "forced illegal resettlement to or from Kazakhstan on the basis of acts of the supreme state authorities of the USSR" are considered as different, independent grounds for recognizing persons as victims of mass political repression. "Expulsion" and "exile" are types of punishment for convicted persons under criminal law.

On the basis of Resolution No. 1428-326ss of the Council of People's Commissars of the USSR and the Central Committee of the CPSU (b) dated August 21, 1937 "On the resettlement of the Korean population from the border regions of the Far Eastern Territory", persons of Korean nationality were evicted from the border regions of the Far Eastern Territory and resettled in the South Kazakhstan region, in the areas of the Aral Sea and Balkhash, the Uzbek SSR, and subsequently, on the basis of the Law of the Republic of Kazakhstan "On the rehabilitation of victims of mass Political Repression," they were rehabilitated as individuals., those who were forcibly illegally relocated to Kazakhstan on the basis of acts of the supreme state authorities of the USSR.

Not all children of victims of political repression are recognized as victims of political repression, but those who were with their parents or their surrogates in places of detention, exile, exile, or special settlement.

There is no evidence that the applicant L. was with his parents or their surrogates in places of deprivation of liberty, exile, exile or special settlement.

The applicant, L., was not forcibly unlawfully relocated to Kazakhstan with his parents. Witness L., confirming only the fact that the applicant L. lived in the village of Chkalov, Baksai district, Atyrau region, did not indicate that persons of Korean nationality were restricted in movement not only at their place of residence, but also throughout Kazakhstan and other republics, as they were also conscripted, enrolled in universities and other educational institutions. establishments without restrictions.

The applicant's parents were repressed in 1937, and the applicant L. himself was born in 1946 in the village of Chkalov, Baksay district, Guryev region; this locality exists to this day and documents confirming that this locality was a place of deprivation of liberty, exile, expulsion, special settlement or place under supervision have not been obtained.

In fact, the decision of the court of first instance is based on the absence of evidence confirming the applicant L.'s presence with his parents or their surrogates in places of deprivation of liberty, exile, expulsion or special settlement, as well as the fact that the applicant L. himself was not subjected to forced illegal resettlement to Kazakhstan with his parents.

Whereas, the existence of information about the use of repression against the applicant's parents in the form of eviction from the border areas of the Far Eastern Territory and resettlement to the territory of the Kazakh SSR, and their rehabilitation, indicates that the applicant's parents were recognized as victims of mass political repression, therefore, in the case of the applicant's residence, L. from the moment of birth with his parents until their release, by virtue of the requirements of Article 2 of the Law of the Republic of Kazakhstan "On the rehabilitation of victims of mass political repression", he is a victim of political repression, and appealed to the court with a reasonable statement.

The residence of the applicant's parents on the territory of Kazakhstan at the time of his birth and on the day of their release in 1956 attests to their residence in places of exile. The presence and residence of the applicant L. with his parents in the places of their expulsion in Kazakhstan is sufficient grounds for recognizing him as a victim of political repression.

The free movement of persons of Korean nationality on the territory of the Kazakh SSR, without registration with special commissions for the resolution of this case, has no legal significance, since these persons moved freely in the places of expulsion.

If the applicant L. himself was subjected to forced illegal resettlement to Kazakhstan together with his parents, then he himself will be a victim of political repression, and not a victim of political repression.

On similar grounds, the decision of the Kyzylorda City Court of the Kyzylorda region of March 31, 2015, denied the application of Ms. O. to recognize her as a victim of political repression. Rejecting the application of Mrs. O., having established that the applicant's parents had been evicted from the Chechen-Ingush SSR to the Kyzylorda region in 1944, the applicant O. herself was born in 1946 in The Kyzylorda Court of first instance also pointed out that not all children of victims of political repression are recognized as victims of political repression, but those who were with their parents or their surrogates in places of detention, exile, exile or special settlement.

There is no evidence that the applicant O. was in places of detention, exile, exile or special settlement with her parents, or that her family was registered with special commissions.

According to a letter dated March 06, 2015 from the Office of the Committee on Legal Statistics and Special Accounts of the Prosecutor General's Office of the Republic of Kazakhstan for the Kyzylorda region, the office has no information about the whereabouts of the applicant O. and her family in a special settlement in the Kyzylorda region.

The archival certificate dated July 10, 1996, No. 11/1-937 states that archival data and cards for O., born in 1946, were sent to the Central State Archive of the Chechen Autonomous Soviet Socialist Republic in Grozny in 1967.

These conclusions of the court of first instance are not fully justified, since the residence of the applicant's parents at the time of her birth and on the day of their release on the territory of Kazakhstan indicates their residence in places of forced unlawful expulsion.

Location and residence of the applicant O. living with her parents in the places of their expulsion in Kazakhstan is a sufficient reason to recognize her as a victim of political repression.

At the same time, it follows from the court's decision that the applicant did not provide archival data on the absence of information about her being in a special settlement with her parents from the Central State Archive of the Chechen Autonomous Republic of Grozny, where archival data and cards were sent in 1967.

The absence of these archival data is evidence of the absence of evidence of the applicant's inability to obtain proper documents certifying the fact that she was in a special settlement with her parents in another, extrajudicial manner.

For this reason, it is assumed that the court's refusal to recognize the applicant O. as a victim of political repression is generally legitimate and justified.

This summary of cases on the recognition of a citizen as a victim of political repression, considered by the courts of the republic in 2016, showed the absence of such comments, which indicates the formation of a uniform judicial practice.

"To establish the legal fact of the use of repression against Ms. V. and to recognize her as a victim of political repression in the period from 1954 to January 1, 1956 and being in a special settlement." In other words, three facts were established simultaneously in one decision: - the fact of the use of repression against a particular person, - the person is recognized as a victim of political repression, - the fact of the person's presence in a special settlement is established. Whereas it is assumed that the establishment of any one of these facts is the basis for a person to receive a certificate of rehabilitation. This summary of the cases reviewed in 2016 has shown the relevance of these recommendations, since the establishment of several facts of legal significance in one court decision continues to take place. For example, by the decision of the Abai District Court of Shymkent, South Kazakhstan region, dated May 17, 2016, the operative part stated: "To establish the fact and recognize P., born on 07/10/1953, who suffered from political repression, as being with his parents, victims of political repression, in a special settlement."

The reason for citizens applying for this category of cases is the benefits provided for in Article 24 of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression" and the Law of the Republic of Kazakhstan "On Special State benefits in the Republic of Kazakhstan", which are provided to victims of political repression and victims of political repression.

In accordance with article 1 of the Law of the Republic of Kazakhstan "On the Rehabilitation of Victims of Mass Political Repression", political repression refers to coercive measures carried out for political reasons by State bodies or officials representing them, in the form of deprivation of life or liberty, including detention and forced treatment in psychiatric institutions, expulsion from the country and deprivation of citizenship, removals from places of residence or areas of residence (exile or expulsion), referrals to special settlements, forced labor with restriction of freedom (including in the so-called "labor armies", "NKVD work columns"), as well as other defeat, deprivation or restriction of rights and freedoms associated with false accusation of committing a crime, or with persecution as socially dangerous persons based on political beliefs, class, social, national, religious or other affiliation in a judicial, extrajudicial or administrative manner.

Rehabilitation means recognizing a person in a judicial or other legally prescribed manner as a victim of political repression or a victim of political repression, restoring his violated rights, and compensating for moral or material damage.

In accordance with article 2 of the Law of the Republic of Kazakhstan "On the Rehabilitation of Victims of Mass Political Repression", it applies to all persons, without exception, who were directly subjected to political repression in the territory of the former USSR and are currently citizens of the Republic of Kazakhstan. Along with persons subjected to these political repressions, victims of political repression are recognized as persons who permanently resided before the repression was applied to them in the territory that now forms the territory of the Republic of Kazakhstan, in the following cases::

a) the use of repression by Soviet courts and other bodies outside the former USSR;

b) convictions by military tribunals of the active army during the Second World War (civilians and military personnel);

c) the use of repression after conscription for military service outside Kazakhstan;

d) the use of repression by decisions of the central union bodies:

The Supreme Court of the USSR and its judicial boards, the board of the OGPU of the USSR, the special meeting of the NKVD-MGB-Ministry of Internal Affairs of the USSR, the Commission of the Prosecutor's Office of the USSR and the NKVD of the USSR on investigative cases and other bodies;

e) the use of repression for participation in the events of December 17-18, 1986 in Kazakhstan, with the exception of persons convicted of premeditated murder and assault on the life of a police officer, a national vigilante in these events, in respect of which the current procedure for reviewing criminal cases remains.

Victims of political repression are also recognized as persons who have been forcibly illegally relocated to and from Kazakhstan on the basis of acts of the supreme state authorities of the USSR.

Victims of political repression in the Law of the Republic of Kazakhstan "On the rehabilitation of victims of mass political repression" are recognized as children of victims of political repression who were with their parents or their surrogates in places of imprisonment, exile, exile or special settlement, as well as children of victims of political repression who were under the age of eighteen at the time of the repression and as a result her applications left without parental care.

The procedure for rehabilitation (recognition of a person as a victim of political repression or a victim of political repression) is provided for in section II of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression". In accordance with article 8 of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression", applications for rehabilitation are submitted by the repressed themselves, as well as by any persons or interested public associations at the location of the body or official who made the decision to apply repression in court - to the prosecutor's office, administratively or otherwise - to the authorities. internal Affairs or national security.

Within the meaning of Article 10 of the Law of the Republic of Kazakhstan "On the Rehabilitation of victims of Mass Political Repression", the constant work on the rehabilitation of victims of political repression, regardless of the statements received in this regard, is entrusted to the prosecutor's office, which, upon request, necessarily checks all cases with court decisions that were not canceled before the Law came into force on persons subject to rehabilitation, for which The internal affairs, national security and health authorities are involved, and they demand the necessary documents, materials and other information., Based on the results of the inspection, the prosecutor's office draws up an opinion, on the basis of which they issue the applicant a certificate of rehabilitation.

In the absence of grounds for rehabilitation, the prosecutor's office is obliged to inform the applicant about the refusal to issue a rehabilitation certificate within the prescribed period and send the case to the court with a conclusion.

In accordance with article 11 of the Law of the Republic of Kazakhstan "On the rehabilitation of victims of mass Political repression", the internal affairs and national security agencies are obliged, on instructions from the prosecutor's office and in cases of applicants requesting confirmation of data indicating the right of a person to unconditional rehabilitation., - to establish the fact of expulsion from the country, removal from places of residence or areas of residence (exile or expulsion), transfer to special settlement, forced labor with restriction of freedom or other defeats, deprivations or restrictions on the rights and freedoms of citizens, followed by administrative or extrajudicial procedure.

When these facts are established, the internal affairs and national security authorities send the case file to the Prosecutor's office and notify the applicant accordingly.

If these facts are not established, or if there are no grounds for unconditional rehabilitation, the internal affairs and national security authorities send the reviewed materials to the prosecutor's office with mandatory notification to the applicant.

In accordance with article 13 of the Law of the Republic of Kazakhstan "On Rehabilitation of Victims of Mass Political Repression", decisions on rehabilitation issues, if the grounds for such rehabilitation are not established, are taken by the prosecutor's office: - for convicted persons - by the courts that issued the latest court decisions.

Cases in which verdicts, rulings, and resolutions have been issued by abolished courts and military tribunals are referred to the courts that have jurisdiction over these cases under current legislation.

The territorial jurisdiction of rehabilitation cases is determined by the place where the last court decision was made; - for those subjected to extrajudicial repression (including forced detention in psychiatric institutions) in the absence of documents confirming unconditional rehabilitation - by the relevant regional and Alma Ata city courts, on whose territory extrajudicial bodies operated and decisions were made by officials.

Thus, there is a certain procedure and sequence for rehabilitation that must be followed before applying to court for rehabilitation (recognizing a person as a victim of political repression or a victim of political repression), which is possible only if the prosecutor's office does not establish the grounds for such action.

In accordance with sub-paragraphs 2 and 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance", courts may accept applications for establishing facts of legal significance and consider such cases in special proceedings if:

a) according to the law (part 1 of Article 305 of the CPC RK), such facts give rise to legal consequences (the emergence, modification or termination of personal or property rights of citizens or organizations);

b) the applicant has no other opportunity to obtain or restore proper documents certifying the fact (Article 306 of the CPC RK);    

c) the current legislation does not provide for a different (non-judicial) procedure for their establishment (Article 306 of the CPC RK); d) the establishment of a fact is not associated with the subsequent resolution of a dispute over a right subordinate to the court (part 2 of Article 304 of the CPC RK).

When accepting an application, the court must find out from the applicant whether there is a legal interest in establishing the fact, and require the applicant to provide written evidence indicating the impossibility of obtaining or restoring a proper document certifying this fact.

The inability to obtain a document should be understood as either the absence of a procedure for registering a fact (for example, being dependent), or non-compliance with the procedure for registering a fact and the inability to resort to it in these conditions (for example, the fact of death, the fact of recognition of paternity in cases where the child's parents, not having registered the marriage after his birth, we made timely corrections to the birth record of the child and this cannot be done due to the death of the father).

The inability to obtain a document should also be understood as cases where there are documents confirming the fact, but they contain errors or inaccuracies that deprive the document of evidentiary value, which cannot be corrected (for example, an accident report).

The inability to recover a lost document should be understood as the inability of the relevant authority to issue a duplicate of the required document due to its loss or destruction.

If the current legislation provides for a different (non-judicial) procedure for their establishment, then the court in accordance with subparagraph 1) In part 1 of Article 151 of the CPC RK, the application must be refused.

In case of erroneous acceptance of the application and initiation of the case, it is subject to termination on the basis of subparagraph 1) of Article 277 of the CPC RK.

In cases of recognition of a citizen as a victim of political repression, a positive court decision generates the desired legal consequences for the applicant, since it will be the basis for receiving a special state allowance in accordance with the established procedure.

Applying to the court with such an application is possible only after complying with the requirements of the Law: applying to other bodies (the prosecutor's Office, internal affairs and national security), not receiving rehabilitation or benefits, and only if it is impossible for these bodies to establish the grounds for such cases are subject to judicial resolution.

At the same time, the need for applicants to apply to other authorities is not a mandatory pre-trial procedure for resolving the issue, since the legislation does not explicitly establish such a preliminary pre-trial resolution procedure.

At the same time, the failure of the applicants to apply to other authorities for rehabilitation does not indicate that the application is not subject to consideration and resolution in civil proceedings and is not a reason for refusing to accept such applications.

             Regulatory legal framework.

The main regulatory legal acts regulating issues in this category of cases and subject to application when considering applications for recognition of a citizen as a victim of political repression are:

- The Constitution of the Republic of Kazakhstan,

- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK), which entered into force on January 01, 2016,

- The Law of the Republic of Kazakhstan "On Rehabilitation of victims of mass political repression" dated April 14, 1993,

- The Law of the Republic of Kazakhstan dated April 5, 1999 No. 365 "On special State allowance in the Republic of Kazakhstan",

- Decree of the President of the Republic of Kazakhstan dated December 12, 1991 No. 540 "On rehabilitation of citizens held accountable for their participation in the events of December 17-18, 1986 in Kazakhstan", - Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance",

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 3 "On the application by courts of legislation on compensation for moral damage",

- Resolution of the Government of the Republic of Kazakhstan dated January 23, 2003 No. 82 "On approval of the Rules for Payment of Monetary Compensation to victims of mass political repression",

- Order of the Prosecutor General of the Republic of Kazakhstan dated January 20, 2012 No. 4 "On approval of the Instructions on the organization of work with appeals in the bodies, departments and institutions of the Prosecutor's Office of the Republic of Kazakhstan". It was registered with the Ministry of Justice of the Republic of Kazakhstan on February 14, 2012 No. 7425.

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