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Pavel Zabotin (1888 – 1933)
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This man was killed in the Stalinist era and never rehabilitated. His grandson is the first person ever to get access to his case files anyway.

Источник: Meduza
Pavel Zabotin (1888 – 1933)
Pavel Zabotin (1888 – 1933)
Memorial Human Rights Center

On July 5, Russia’s Supreme Court ruled that the Moscow region’s police department must grant Georgy Shakhet, a Russian actor, access to archival files concerning the criminal case against his grandfather, Pavel Zabotin. In 1933, Zabotin was executed on the orders of one of the OGPU’s notorious extrajudicial sentencing panels, or “Troikas.” Shakhet has been fighting for access to his grandfather’s case since 2016, and since 2018, he has been demanding that his grandfather be legally rehabilitated. The rehabilitation process, which is intended to restore the reputation of those targeted in the Stalinist repressions, must often be conducted posthumously because so many victims of those repressions were killed or died in labor camps. However, like many before him, Georgy Shakhet has found that rehabilitation is impossible without access to the case materials of the individual in question. Those case materials, in turn, cannot be released unless the target of the case has been rehabilitated. Shakhet is the first person to have successfully argued in court that the resulting catch-22 only emerged because law enforcement agencies incorrectly interpreted Russian law.

Actor Georgy Shakhet fought for three years to gain access to his grandfather’s case files.

The Supreme Court responded to Shakhet’s appeal by ordering Moscow regional police to grant him access to the criminal case against his grandfather, Pavel Zabotin. Zabotin, a civil engineer, was arrested in December 1932 under the so-called “Law of Three Spikelets,” which punished even minimal theft from state institutions with lengthy prison sentences or death. Two weeks later, a Troika panel ordered him shot. Shakhet learned about his grandfather’s fate by chance: his doctor told him that he had found one of his own relatives on a list of repressed individuals published by Memorial, a human rights organization that works to shed light on Soviet-era persecution. Shakhet asked his doctor to check whether Zabotin’s name was on the list as well.

“Unfortunately, all this came to me rather late. All my relatives had passed away, and the ones who were still alive never talked about it, they were so scared,” Shakhet told Meduza. “I even found my mother’s stepmother, who was my grandfather’s [second] wife. I could have gotten some information firsthand, but I wasn’t even 18, and [the repressions] hadn’t yet become a problem for me.”

To determine why his grandfather was sentenced death, Shakhet wrote to his regional police headquarters in November 2016. Zabotin’s case materials are stored in the agency’s archive, but Shakhet was refused permission to view them. The actor was told that because Zabotin was sentenced under a criminal statute rather than a political one, the Russian law that allows access to the case materials of rehabilitated victims does not apply to him. Shakhet appealed the police department’s decision in the Golovinsky Court, but the court decided against him. A subsequent appeal to the Moscow City Court yielded the same outcome.

Russian courts regularly deny access to non-rehabilitated victims’ case files, and government agencies can even sue petitioners for legal fees.

Shakhet’s case is far from the only one of its kind, said his attorneys, Marina Agaltsova of Memorial and Anna Fomina of the St. Petersburg organization Team 29. According to Fomina, it is Russia’s prosecutors who have the authority to decide whether an individual should be rehabilitated. Only they have access to cases materials that were used to convict those who have not been rehabilitated. “When the rehabilitation law was passed, the government agencies responsible for it initiated a reexamination of the old criminal cases themselves. In recent years, that initiative has died down, and [the victims’] relatives have had to submit requests in order for the question of rehabilitation or non-rehabilitation to be considered,” she explained. “Some people believe that if [someone] wasn’t rehabilitated in those early years, it’s unlikely that they will be rehabilitated now.”

In advance of Shakhet’s Supreme Court hearing, Fomina requested information from the Central Military Prosecutors’ Office and the Internal Affairs Ministry on the results of post-Soviet rehabilitation cases in Russia. From 1993 to 2018, almost three million people have had their reputations restored through the rehabilitation process, and almost a million more have had their applications rejected. Fomina said that it is impossible to access the cases used to sentence the latter group.

Yan Rachinsky, the chair of Memorial’s board of directors, agreed. He said researchers and victims’ relatives have made dozens of unsuccessful attempts to gain access to case materials about unrehabilitated individuals. Agaltsova and Fomina said attorneys at both Memorial and Team 29 have encountered many cases that traveled all the way to the Supreme Court only to have requests for access to a relative’s files denied one last time.

Both attorneys also noted that many relatives of Stalinist-era victims choose not to go to court in the first place. “People here don’t like going to court in general. It’s expensive, and it’s taxing both logistically and emotionally,” Fomina explained. She added that if a petitioner loses, state security agencies sometimes choose to sue them to cover legal costs. That was the fate one of Team 29’s clients met when he, like Shakhet, tried to gain access to the case against a relative of his who had not been rehabilitated.

Yan Rachinsky added that simply considering a petition on its face and attaining rehabilitation for a relative without accessing their case materials is practically impossible. “Just as there was no defense when the Troikas made these decisions, there is still no defense now when prosecutors deny [requests for rehabilitation], often without justification,” he explained.

Shakhet’s case represented the first time both the court and the police admitted to interpreting the law incorrectly.

Law enforcement officials and judges typically explain their decisions not to grant access to a non-rehabilitated relative’s case using two legal documents: the rehabilitation law mentioned above and a 2006 joint order issued by the Culture Ministry, the Internal Affairs Ministry, and the FSB. The former states that the relatives of those who have been rehabilitated may access a family member’s case materials with that individual’s consent or after their death. The latter indicates that if a Russian citizen applies for access to case materials for an individual whose rehabilitation case failed, the archive holding the materials should issue a request for the case to be reexamined. The joint order also states that archival requests do not carry the authority to grant or deny access to case materials themselves.

Agaltsova and Fomina believe that citing those two provisions to deny access is incorrect. “It’s an interpretive overreach on the part of the government organs that control these archives,” Fomina said. “The rehabilitation law only applies to rehabilitated people. It doesn’t say a word about those who have not been rehabilitated. The joint order also says nothing to the effect that you can’t grant access to these cases.”

The attorneys argued that in Shakhet’s case and its many analogues, another federal law on archival work should be applied instead. It states that as soon as a criminal case is stored in an archive, the legal concepts of “prosecutorial secrets” and “procedural secrets” can no longer apply to it. The archive law also mandates that, 75 years after the documents are first created, even limits on accessing family secrets and personal information are no longer valid. That means not only relatives but researchers as well should be able to receive access to the documents in question. Finally, the attorneys asserted that because the Troikas were extralegal sentencing bodies, the concept of procedural secrets should never apply to them at all.

During Shakhet’s hearing on July 5, both the Supreme Court and a representative of the Moscow region’s police headquarters agreed with those arguments for the very first time. “This hearing was unprecedented!” Fomina told Meduza. “Law enforcement officers never admit that they applied a law incorrectly or did anything else [wrong]. In this case, we heard precisely the opposite. […] The court truly surprised us. It could have sent [the case] back for further examination, but evidently, it believed that we had been through enough and done enough already.”

Georgy Shakhet told Meduza that the court’s decision brought him “great joy.” “This is important to me. These are my roots. We’re all like tumbleweeds otherwise,” the actor explained. “There are happy people who know their [older relatives], and I envy them. I would have liked to know my grandma, my great-grandma, and so on — where they were from, who they were. But how? That’s what this is about right now, you understand?”

Shakhet and his attorneys hope to get his grandfather rehabilitated as soon as possible. They began trying to reestablish Zabotin’s reputation in September of 2018. As in the fight to access the files on his grandfather’s case, Shakhet has already received multiple negative responses to his rehabilitation request — from Moscow’s prosecutorial office, from the Tagansky District Court, and from the Moscow City Court. Now, Fomina and Agaltsova are waiting for the Moscow City Court to issue a decision on their appeal of its first ruling. “We hope that the outcome will be the same as it has been in this case,” Fomina told Meduza.

This article has been corrected to reflect that the NKVD only replaced the OGPU in 1934 and that Zabotin was not killed in a purge but rather during the Stalinist era more broadly. We apologize for the error.

Story by Kristina Safonova

Translation by Mari Jarris, Hilah Kohen, and Nicci Mowszowski