On Monday, November 9, a judge of section 15 of Magistrate court of Obninsk handed judgement in the case of human rights activist Tatiana Kotlyar. The court found her guilty of violating Articles 322.2 and 322.3 of the Criminal Code of the Russian Federation (criminal liability for fictitious registration at the place of stay or at the place of residence of Russian Federation citizens or foreigners) and immediately granted amnesty. But Tatyana Kotlyar’s fight is not over: she wants to appeal the decision to a higher court.
Former Deputy of Obninsk City Assembly Tatiana Kotlyar works for the protection of migrants’ rights. She is a well-known human rights activist, member of the “Migration and Law” network of Human Rights Center Memorial.
Russian Federation legislation for foreign citizens and stateless persons oblige to implement the registration at the place of residence or at the place of stay in compliance with the Federal Law dated 18.07.2006 “On Migration Registration of Foreign Citizens and Stateless Persons in Russian Federation”. Foreign citizen or stateless person is deprived of rights to legalize his status in Russian Federation without these registration procedures as well as deprived of right to obtain access to public services, social assistance and support.
For several years Tatiana Kotlyar has been selflessly registering foreigners in her apartment to legalize their status, including members of the state program aiming to assist a voluntary resettlement of compatriots living abroad to Russian Federation due to the fact that this category of citizens has a systematic problem with inability to account for registration at the place of stay or registation at the place of residence in Russian Federation because on arrival to the territory of Russian Federation they often don’t have a residence or place of stay even being the participants of the above-mentioned program.
Currently Tatiana Kotlyar has registered more than 1000 (one thousand) migrants. The majority of them are resettlers-compatriots. She actively covers her activity in media pointing out inadequacy of current legislation. She’s urging public and authorities to pay attention to existing systematic problems, violations of foreign citizens’ and stateless persons’ rights.
Since the beginning of the year 2014 the Criminal Code of the Russian Federation was supplemented with the criminal liability for fictitious registration at the place of stay or at the place of residence of Russian Federation citizens or foreigners (Art. Art. 322.2, 322.3 of the Criminal Code). This introduction was implemented hastily without any proper study from the part of legislators. The disposition of the articles contains a number of imperfections, which make applying of criminal liability for fictious regisration nearly impossible. Nevertheless, law enforcement authorities have already begun to prosecute people who register foreigners in their apartments. This law was named “Law on rubber flats” in public and media sphere.
Tatian Kotlyar who recently succeeded to legalize compatriots arriving to Kaluga from abroad was critisized repeatedly by authorities. There have been a number of attempts to bring her to administrative liability for the registration of migrants at her place of residence. But the courts stopped the persecution of human rights activist. Since the beginning of the 2014 law enforcement authorities have got a new opportunity to affect Tatiana Kotlyar.
Criminal case on the grounds of crimes under Art. Art. 322.2. 322.3 of the Criminal Code brought against Tatiana Kotlyar was initiated by the decree of the Head of the Investigation Department of the Investigative Committee of the Russian Federation in Kaluga region Major-General Efremenkov V.V.
On November 9, when Tatiana Kotlyar was found guilty, she said: “After previous court meeting, after hearing of arguments I passed to a small grocery store. And there a saleswoman, who I know, a refugee from Ukraine, who was trying to get Russian citizenship, pours out her heart to me. She says, all is going well in Russia, and it’s possible to get a job and even citizenship. But the requirement of registration at the place of residence crushes all plans. She doesn’t have such a possibility, because she has no property of her own. That’s what this trial is about.”
The court hearings on November 9 began with the last statement of the defendant, human rights activist and former deputy of Obninsk City Assembly Tatiana Kotlyar. The final meeting was to be held on the 6th of November, but the judge postponed the date of consideration.
“Since the year of 2007 in Kaluga region and in other 12 subjects of the Russian Federation the state program of compatriots’ ressetlement of is being implemented. This is a state policy and a state program. I was involved in this program from the very beginning as a deputy of Legislative Assembly of Kaluga Region, making propositions for improvement of this state program. Our Legislative Assembly announced two initiatives. The first one was to extend the state program to those who already stay in Russia. Three years later the president passed our amendment issuing a decree №60. The second proposal was that participants of the state program aren’t required to submit registration at the place of residence when applying for admission to Russian citizenship. It is very complicated when a person don’t have property because the procedure requires the presence of all owners of a rented apartment. Additionally, we also tried to amend the law on citizenship, but the State Duma didn’t accept it. Now there is a similar proposal on refugees from Ukraine.”
Tatiana Kotlyar said that amendments, enabling participants of the state program to make registration in urban and regional administrations, proposed in the beginnning of 2014 by Federal Migration Service, also were not passed. And who knows whether these amendments will be passed. This situation has created growth of corruption. 3-months registration costs 1, 5-2 thousand rubles, 1-year one costs 15-20 thousand rubles. But many participants of the state program come without money, having sold the whole property to come to Russia. They can not afford such an expensive purchase.
“As a citizen, as a deputy, who participated in drafting the bill from the very beginning, I decided to become such an element of this state program to prevent people from being cut off from obtaining citizenship. I believe that I was taking actions which must be taken by the state and its officials”, Tatiana Kotlyar explained her motives.
Despite the arguments of the defendant, judge Dmitriy Trifonov almost fully supported prosecutor’s position, expressed during the debates. He didn’t exclude from the case episodes of the year 2013, noting that in 2013 the Article 322.1 of the Criminal Code of the Russian Federation “Organization of illegal entry of foreign citizens or stateless persons into the Russian Federation, their illegal stay in the Russian Federation or the illegal transit through the territory of the Russian Federation ” was already valid. According to the judge, Articles 322.1 and 322.3, included in the Criminal Code on December 21, 2013, are special rules, singled out from the Article 322.1 of the Criminal Code. The aim of these rules is to improve the situation of a convicted person. Therefore, in accordance with Article 10 of the Criminal Code, they have retroactive effect.
Also the judge didn’t recognize the fact that Tatiana Kotlyar herself notified the authorities of her “crimes”. Illarion Vasilyev, a lawyer, during the hearings repeatedly referred to the notes to the Articles 322.2 and 322.3 (“A person who commits an offense under this article shall be absolved of criminal liability if he helped to solve the crime and if his actions doesn’t involve another offence”) and drew court’s attention to the fact that Tatiana Kotlyar reported about her actions to regional and federal officials”.
“The court considers Tatiana Kotlyar notifications about her actions to the Federal Migration Service not like the reports about “committed crimes”, but like reports to state authorities about imperfections of existing immigration legislation. Additionally, the court considers that these reports were not sent to the law enforcement authorities authorized to prosecute”, it is said in the decision.
“Considering public danger of the committed crimes”, the court found Tatiana Kotlyar guilty of committing crimes under Articles 322.2 and 322.3 of the Criminal Code of the Russian Federation and sentenced her to a fine of 150 thousand rubles. And immediately granted her a “jubilee” amnesty: “On the basis of a resolution “On amnesty in connection with the 70th anniversary of the Victory in the Great Patriotic War of 1941 – 1945” release Tatiana Kotlyar from the imposed sentence, expunging conviction.
But the case of Tatiana Kotlyar is not over with this sentence. The lawyer Illarion Vasilyev said that within a fixed deadline of 10 days they together with Tatiana Kotlyar are going to appeal the case in the Obninsk City Court.
“We are strongly disagree with the amnesty, we didn’t ask about it and during the debates we stressed that we ask not to apply it. We don’t agree with the sentence, Tatiana Kotlyar is not guilty, we completely deny the guilt. First, revision of the incriminated articles is insufficient, there is no definition of fictitiousness. Second, there is no exculpatory ground in the case. And, of course, the most important thing is that we don’t agree with the retroactive effect of the law. And these are 108 episodes from 2013.”
Illarion Vasilyev also explained why human rights activist intends to bring the case to higher courts:
“This repression in the form of Articles 322.2 and 322.3 of the Criminal Code of the Russian Federation doesn’t affect only Tatiana Kotlyar but also participants of the state resettlement program and Ukranian refugees whom she helps to obtain Russian citizenship. She does what the state doesn’t do inviting our compatriots. We want to draw the attention of authorities to fallacy of the practice to claim the registraton, that cutt people off from the participation in the state program and from citizenship.”
By Elena Srapyan, “Civic Assistance”
Photo by Alexander Fyodorov