Oleg Orlov comments on the European Court's recent rulings on applications by victims of Soviet repression in Kalmykia

18 March 2013 

Source: HRO.org (info)
The HRO.org website has already reported that the European Court of Human Rights (ECtHR) has rejected an appeal by Kalmyks seeking compensation for moral damage suffered as a result of Soviet political repression in the 1940s. The website asked member of the board of the Memorial Human Rights Centre Oleg Orlov for his reaction.

Oleg, have you already seen the press release by the European Court on these cases brought by Kalmyk applicants?

Definitely. This press release in effect states that there already are (and there will be more) individual decisions by ECtHR judges on the inadmissibility of similar cases. As far as we can understand at this stage, all these appeals to the European Court of Human Rights were of the same type: they were all based on the decision by the ECtHR on the "Georgian appeal."

In 2010 the ECtHR ruled on an appeal by two Georgian victims of Soviet political repression. They were complaining about the fact that they were unable to receive compensation for moral damage from the Georgian authorities.

The Georgian applicants based their complaint on a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In their view the Georgian authorities violated the ban on inhuman or degrading treatment or punishment (Article 3), and insofar as they were not paid the compensation due to them, their right to peaceful enjoyment of possessions (Article 1, Protocol 1) was also violated. The ECtHR, having considered their appeal, ruled that Georgia had only violated Article 1, Protocol 1 and ordered every applicant to be paid, it would seem, in the region of 4,000 euros.

So it turns out that the positive decision on the Georgian appeals acted as a reference point for the applicants from Kalmykia, and according to the latest information, from Karachai-Cherkessia? 

That's exactly right. Once they learned of the decision by the ECtHR, groups of Russian victims of political repression submitted similar appeals. After all, the Russian courts were not even accepting claims for compensation for moral damage from them. The applicants prepared their appeals on the basis of Article 6 (right to fair trial) and Article 1, Protocol 1 of the European Convention. All the "Kalmyk" appeals are like this. And in Moscow many also wanted to send the appeals to the ECtHR. The Memorial Human Rights Centre wrote about this at the time: there is an article in one of our newsletters written by lawyer Furkat Tishaev. We urged such appeals not be filed since there was no realistic prospect whatsoever of them succeeding. It appears that they listened to us in Moscow, but not in Kalmykia.

The point is that the situations in Georgia and Russia are fundamentally different. In Georgia the law On the Rehabilitation of Victims of Political Repression at the time had a separate provision on the right of victims to receive compensation for moral damage. But in Russia there is no such provision. Deputies in the Russian State Duma even crossed out any mention of moral damage from the law! There is a provision on a one-off payment of 75 roubles for every month spent in captivity. But what this puny amount is supposed to compensate for, moral or material damage, is unclear.

In Georgia there was such a provision but no laws outlining the size of or the procedure for the payments were ever adopted.

Therefore in the "Georgian case," the ECtHR was not considering the issue of whether victims of political repression should now be paid compensation for their suffering during the Soviet era, and that bad governments refuse to do so.

No. the European Court cannot even pose the question since the repression took place before Georgia signed up to the European Convention.

The ECtHR was considering a completely different issue: that the provisions CURRENTLY IN FORCE require a certain amount of compensation to be paid. But citizens cannot exercise their rights because there is no procedure for how this compensation should be determined and paid.

It was because of this, and not for moral suffering in the past, that Georgia was ordered to pay compensation to two applicants to the European Court of Human Rights. Of course, in addition, Georgia is also supposed to somehow remove this contradiction from its legislation.

And our own victims of political repression still misunderstand the decision by the ECtHR on the Georgian case. They think that the European Court upheld the right of all victims of political repression during the Soviet era to receive compensation from the state for their moral suffering during this time.

It is a real shame that thousands of people in Kalmykia have now been left so disappointed. However, the people who organised this campaign were warned...