On Temporary rules which regulate access to kindergartens while violating the Constitution and legislation of the Russian Federation.
Earlier in September the Civic Assistance Committee already covered the so-called Temporary rules and their deciding role in admittance to our capital’s kindergartens (full name – “Temporary rules for filing applications for registering children, for introducing changes to existing applications and for enrolling children to state educational institutions of preschool educational programs under the Moscow Department of Education”). This very document of unestablished status denies children with temporary registration (registration at the place of stay) admittance to kindergartens, puts them in a long waiting list which often grows endless instead of moving them closer to the desirable vacant spot. For example, Moscow city court recently reviewed case No. 33а-8118/2018 in which a parent claimed that his child was moved from #40 in line before September 1st far back to #222 a few months later. Desperate father wanted the court to at least make the Moscow Department of Education restore the line sequence but neither the public officials nor the judges saw anything unusual or problematic in these placement changes. And it’s far from being an isolated case. When it comes to children without registration in Moscow, Moscow Department of Education officers don’t even let them join the waiting list, they simply decline such applications since Temporary rules do not imply applications of admissions to kindergartens for children without registration in Moscow.
Temporary rules not only violate Article 43 of the Constitution and legislation of the Russian Federation in terms of guarantees of universal accessible preschool education but they also are of unspecified legal nature. They were not adopted under any decree, they do not set any timeframe for provision of preschool education, they are not registered in any legal database, they were not published in due process, the full body text doesn’t even exist – there is only a version of the Temporary rules with remarks dating back to 2013 and 2014 and a separate set of three pages with changes made in 2015. It is not easy to make sense of it all but that is not what these Temporary rules were written for. The Russian Ministry of Justice tried to acquire the recent edition and full body text of the Temporary rules from the Moscow Department of Education for a proper legal and anti-corruption assessment that would uncover the unlawful self-will. The aforementioned department and the Moscow Government claimed that the rules “did not have the attributes of a regulatory act”, failed to provide the text of the document and went on using it.
Not too long ago we received synchronized replies from the Mayor’s Office and the Moscow Government, the Federal Service of Supervision in Education and Science and the Moscow Prosecutor’s Office that the Temporary rules “do not have the attributes of a regulatory act”. It would seem that the next step should be a ban on the use of the Temporary rules as a document regulating admission to kindergartens but none of the government agencies made it. Why though? What is the status of the Temporary rules if they are not considered to be a regulatory act? Are they a non-regulatory or an individual legal act? That could not possibly be true since they are not a decree on award or a personalized appointment order.
In reality, the Temporary rules have been acted upon for several years now despite their name and can be easily called “permanent rules”. Because of them, tens or even hundreds of thousands of children haven’t been admitted to kindergartens. It is obvious that the Temporary rules spread their influence on an unlimited number of persons and moderate important social relations. In other words, they carry all features of a regulatory act. Calling them an individual legal act (meaning an act issued in respect of a specific subject and applied on a single occasion), is a mockery of legislation and abuse of common sense. What exactly are these Temporary rules then? Government officials prefer to recount what they are not rather than answer directly. This document must be either top-secret or a revelation from above that has Moscow public officers tremble with fear.
The irony is that the very body text of the Temporary rules reckons them a regulatory act. Part 9 of the Temporary rules says that “Current control over officials responsible for implementing and adhering to the Temporary rules and other regulatory acts that establish requirements for the provision of a state service, and their decisions will be performed by the Head of the Moscow Department of Education and other designated officials”. Apart from that, the Temporary rules can only be found on the official website of the Moscow Mayor and the Government of Moscow (www.mos.ru) on a web-page called “Regulatory acts” which everyone can see for themselves via this link https://www.mos.ru/pgu/ru/services/procedure/0/0/7700000010000186731/?onsite_from=4532)5.
But that’s not all. Recently, Moscow judges and Moscow Department of Education representatives have been using a mysterious explanation: “For the moment the Temporary rules approved by the Moscow Department of Education are active”, and clarifying to the parents distressed over years-long queues that they in no way contradict the right to preschool education, according to same Temporary rules. Just how judge Afanasieva I.I, the judge who reviews almost all cases of access to preschool education in Moscow, prefers to support her rulings: “At the same time, none of the items of the Temporary rules specify the timeframe for provision of a spot in a preschool educational institution, and the provision of a spot in a preschool educational institution depends on the date of registration and the number of applicants with similar guarantees” (for example, see the ruling for Case № 2А – 706/2017 or Case № 2-5194/2018).
One would think that the judge should question the lawfulness of the failure to provide any time frame in such a document and whether it allows state officers to abuse power and keep children in never-ending queues. Judge Afanasieva I.I., on the other hand, does not question it but rather uses it to explain why there is no problem in waiting so long. Moreover, Afanasieva I.I. often writes in her rulings that «the existence of a queue for a spot in a preschool educational institution by itself cannot be regarded as failure to provide free accessible preschool education to the child of the administrative plaintiff, or as refusal to provide a spot in a preschool educational institution” (for example, see the ruling for Case № 2А-701/2017 or Case № 2-5194/2018). Riddles, once again, the mysterious “active” status; lack of any time frame which is not a symptom of unlawfulness of the Temporary rules; no access to education is granted but that is no violation of the right to education. Vain would attempt to find logic in all this, least of all justice…
This puzzling mist is a new guest in courts since apparently nobody really raised concern about the lawfulness of the Temporary rules in general before. When they first came into force in late 2013 – early 2014, representatives of the Moscow Department of Education and even Moscow judges would openly call the Temporary rules a regulatory act during court proceedings. For example, there is a judicial ruling d/d September 29,2014, for Case № 3-222/2014 which makes the Moscow Department of Education especially proud for the Moscow city court debated one of the items of the Temporary rules and found no ground for their abolition. Those acquainted with court practice will not be surprised: they know very well that Moscow judges haven’t settled a claim, even partially, in favor of a child’s right to education against the Moscow Department of Education in the last five years. But this ruling has another peculiarity. It’s very demonstrative in its absurdity and abuse of power performed by judges. This decision clearly and repeatedly attributes the Temporary rules to regulatory acts, as seen both by judges and the Moscow Department of Education officials. For example, when disputing the Temporary rules it states the following: “<…> after analyzing written facts of the case and presented evidence and assessing selected provisions of the regulatory act litigated by the applicant <…>”. Meanwhile, representatives of the Department of Education claim that “the regulatory act was enforced in due process”.
All responses concerning the status of the Temporary rules trick us into an argument over whether they are a regulatory or a non-regulatory act when the main point is that the Temporary rules for filing applications for registering children, for introducing changes to existing applications and for enrolling children to state educational institutions of preschool educational programs under the Moscow Department of Education are a non-legal or rather an anti-legal act. But it’s not an option for the Mayor’s Office and the Moscow Government, the Federal Service of Supervision in Education and Science and Moscow Prosecutor’s Office. Otherwise, it would imply that the Moscow Department of Education, and its Head in particular, vulgarly violated the law, and is still doing that!
Government representatives and state officers involved would prefer to call them a non-regulatory act and turn a blind eye onto the very body text of the Temporary rules which contradicts their words and onto the fact that the judges and the Department of Education have been considering them a regulatory act all along. In the long run, it’s much easier for them to make up a non-existent law or an act than to admit a simple and obvious, ever so sad fact that tens of thousands of children in Moscow have been denied access to kindergartens for five years now, in disregard of the Constitution and Federal laws of the Russian Federation. All whilst referring to a document which doesn’t comply with the most common requirements for regulatory purposes.
Story by Konstantin Troitsky Civic Assistance Committee analyst
Photo by Ekaterina Shmeleva, Civic Assistance Committee volunteer
Translated by Elena Fedyushkina