Available case study law points to the problems which appeared in the contexts of both; the 1991 and 200l laws on citizenship, including old legislative acts. The Russian authorities continued the practical application of certain mechanisms inherited from the old Soviet law with very brief concepts or explanation in the 1991 or 2001 laws. For example, one of such mechanisms was - a residence permit, which caused difficulties when addressing the status of certain group of individuals. The issue became highly controversial when the European Court of Human Rights received several applications from stateless persons who were refused residence permits or citizenship by Russian authorities. In this paper, it is aimed, through the 6 category of cases, to give a brief description of certain human rights problems which existed or still have been existing in the citizenship law of Russia.
I. Legal dilemma of compatriots
In July of 2002, the Russian parliament replaced the 1991 citizenship law with the new 2002 Federal Law on Citizenship of the Russian Federation (hereinafter the 2002 law).1 The new 2002 law toughened the general rules on naturalization in comparison with the first liberal citizenship law of 1991, thus creating additional legal obstacles for a considerable number of former Soviet citizens.2
The change in immigration policy in Russia in 2008 resulted further in additional provisions for compatriots.3 Those compatriots who have been re-settling in Russia voluntarily are also legally subjected to simplified naturalization. However, certain studies assert that in practice the procedure is long and difficult.4 It remains as a cornerstone between Russia and its compatriots who live in other states.
In legal terms, the present Russia is a successor state of the USSR. Thus, theoretically, the Russian Federation must retain its obligation to liberalize or facilitate its naturalization procedure to all former USSR citizens who wish to
1 The 2002 Federal Law on Citizenship of the Russian Federation, 62-FZ (in force from 1 July 2002) 2 Laura A, Henry, “Redefining Citizenship in Russia: Political and Social Rights”, Problems of Post- Communism 56, no. 6 (November 2009) 51;
3 Ibid, Art 14; (7). Also; The Federal Law About a state policy of the Russian Federation concerning compatriots abroad; May 24, 1999 of N 99-FZ;
According to the law compatriots are understood to be all persons and their descendants living abroad who have historically lived in the territory of the Russian Federation and also those who chose to engage in a spiritual, cultural and legal relationship with Russia. The concept of the compatriot is not limited merely to people of Russian nationality (i.e. ethnicity);
4 Svetlana Sibina, “Chemodannoye mood. Every third immigrant chooses as a place of residence Siberia and the Far East”; Published in RG Economy of Siberia, No.5670. (December 29, 2011); A.M, Drozdova,
“About problems of migrants-compatriots in Russia”, Migration Law 2009. No 2; A.P.Merkulova “On the issue of the concept and contents of state policy of Russia with regard to compatriots abroad”, Legal world 2011. No 4; D.V. Petukhov, “Constitutional aspects of support and protection of compatriots by Russia abroad”. Journal of the Russian law 10, 2007;
acquire Russian citizenship. In practice, different criteria, such as time limits and bureaucracy affect the permanent applicability of laws and prevent compatriots from simplified naturalization. De jure, the policy towards compatriots is liberal and open minded, as the Russian authorities recognize the large Russian diaspora in other post- Soviet states. De facto it remains restrictive because relevant laws have been dormant.
Namely, there is an opinion that the application of Russian citizenship should have even much broader sense aimed at all other former USSR citizens, in light of the fact that it overtook the role of the state which legally continued the predecessor state. The question is not well addressed in state succession-continuity practice, especially in present cases, and therefore it is unclear whether there is any kind of responsibility on the part of the Russian Federation towards other former USSR nationals irrespectively of their current legal status (nationals of other independent state or stateless persons).
Certain critical issues from the Soviet Citizenship law and policy
II. Propiska – bureaucratic residence permit from issuing authorities. III. OVIR - Exit visa
With the help of propiska, an issuing authorities could at anytime easily track down any person’s residence, arrival or departure to a new place. Simultaneously, living without the propiska became illegal and severely penalized by the law-enforcement agencies. The authorities were also competent to de-register individuals who could not demonstrate a concrete reason for residence in other cities or regions for over a six- month period. Certain cities which offered more advantages in employment placed a quota, or in other words, limited propiska and did not give permission to co-citizens from other regions and cities to reside. People residing in villages and agricultural centers were mainly denied the right to be issued a passport and thus strictly limited in moving internally.
The case Tatishvilli v. Russia brought before the European Court of Human Rights demonstrates an arbitrary refusal to certify a residence permit at a chosen address to the holder of a former USSR passport. The authorities’ refusal was motivated by the fact that the applicant had failed to prove her Russian citizenship. The absence of propiska made the further stay of the applicant in Russia illegal. The ECtHR found out that Russia did not have a law which would impose an obligation on citizens of the former USSR to obtain propiska as a requirement for legal residence, as it was provided in Soviet law. The European Court of Human Rights therefore, found a violation of the Article 2 of Protocol No. 4 (freedom of movement) and Article 6 (1) (right to a fair
hearing) of the Convention.5 The case had a special importance not only for stateless persons but also for ordinary citizens as it eradicated the issue of propiska in Russia and replaced it with a more liberal concept of notice-based registration.
The exit visa - OVIR, which was also attached to the citizens’ passports became a special permission from authorities for citizens and permanent residents to travel abroad. Without this permission, citizens had no right to leave the USSR. Usually, authorities restricted the freedom to leave the country for dissidents and certain individuals, including human rights advocates. In most of the cases authorities did not state clear reasons for denying them their right to leave or re-enter the USSR.6
IV. HIV infection
The citizenship law of Russia stipulates indirect prohibition for naturalization for foreigners and stateless persons in cases of their being HIV-positive. Besides providing information on temporary or permanent residence, the list of necessary documents for naturalization also includes a medical certificate on HIV-negative status. Foreign nationals and stateless person are subjected to deportation once a HIV-positive status is discovered.7
The domestic case of the Ukrainian citizen X demonstrates an example of an indirect prohibition of naturalization for HIV-positive people in Russia.8 A national of Ukraine who was residing in Russia with his wife and daughter (both Russian citizens) brought his complain to the Constitutional Court of the Russian Federation in 2006. The applicant stated that Russian law on foreign citizens prevented his naturalization because of his HIV-positive status and thus violated his right to family life and right to medical assistance. The same year, the Russian Constitutional Court rejected the complaint, ruling that restrictions for HIV-positive people were imposed for the purposes of protection of public health and thus declared the decision of court as fully compatible with the existing constitutional values.
5 Tatishvilli v. Russia, European Court of Human Rights (no. 1509/02) February 22, 2007; 6
7 Art 11 (2) of the Federal Law About the prevention of distribution in the Russian Federation of the disease caused by a human immunodeficiency virus (HIV-infection);
Art 7 (13) and article 9 (13) of the Federal Law About the legal status of foreign citizens in the Russian Federation. Refer later to the case study law;
The case of the citizen of Ukraine X about violation of his constitutional rights; The decision of the Constitutional Court of the Russian Federation N 155-O from 12 May 2006;
8 Decision of the Constitutional Court, N 155-O regarding the complaint of the citizen of Ukraine X. regarding violation of his constitutional rights by art 11 (2) of the Federal Law about the prevention of the Distribution in the Russian Federation of the decease caused by a human immunodeficiency virus (HIV infection); by art7 (13) and art 9 (13) of the Federal Law about the legal status of the Foreign citizens in the Russian Federation;
Another similar case regarding the rejection of the issuance of Russian permanent residency to a HIV-positive foreign national was brought to the ECtHR in 2011. In the case of Kiyutin v. Russia the applicant, married to a Russian citizen, was refused a permanent residence card after the medical check proved him to be HIV- positive.9 The ECtHR found in that case that the applicant had been the victim of discrimination based on his health status. The court explained its rulings with the following arguments; firstly, most of the countries did not apply HIV related travel restrictions, considering them as a not effective method of protecting public health. Additionally such rules violated the free movement principle. Secondly, as the applicant had strong family ties in Russia, the court considered him as eligible for a permanent residence, stating additionally, that Russian migration authorities did not impose HIV tests on citizens leaving and returning to the country. The Court therefore found the case to be a violation of the article 14 of the convention (differentiating approaches to HIV-positive foreigners when issuing their permanent residency).10
V. Individuals erased from the state register
Between 1991 and 2010 many individuals in Russia faced the problem of factual deprivation of citizenship in the form of confiscation of passports by the Federal Migration Service, which is in charge of citizenship issues. Officials explained the situation as being the illegitimate registration of citizenship (non-acquisition) which finally resulted in judicial deprivation and further statelessness for more than 65,000 people. Some scholars evaluate it as de facto deprivation of citizenship as confiscated passports were declared null.11
It was found out later that some of those who were naturalized under the provisions of the 1991 law were not included to the general register of citizens of the Russian Federation. A considerable number of them were former military personnel in Lithuania, Latvia, Estonia and other former states of the USSR. The continuous criticisms from human rights NGOs’, international organizations and the domestic human rights council finally made the state parliament declare a so-called passport amnesty in 2011.12
9 Kiyutin v. Russia, European Court of Human Rights, (App no. 2700/10) March 10, 2011; 10 Ibid, from march 10, 2011;
11 Refer also to Kuric and Others v. Slovenia, European Court of Human Rights (Application no. 26828/06) March 12, 2014; Natalia Kozlova. “Troika confiscates passports. Ten thousands of Russians are deprived of citizenship by administrative decision of officials”. Russian gazette December 15, 2010; http://www.rg.ru/2010/12/15/fms.html [accessed on February 13, 2014];
Lidia Grafova, “To deprive of the passport - to deprive of life”, Russian gazette N 4990, September 4, 2009. http://www.rg.ru/2009/09/04/lukin.html [accessed on February 13, 2014];
12 Natalia Kozlova. “Passport amnesty; The deprivation of passports is now prohibited”, Russian
VI. Statelessness case of Meskhetian Turks
Meskhetian Turks - a Muslim group which resided in the south-west of present- day Georgia, were in 1944 deported en masse to Uzbekistan, Kazakhstan and Kyrgyzstan.13 Unlike Koreans or Crimean Tatars, they were never rehabilitated and even after the fall of the Soviet Union, the Georgian authorities unanimously blocked their repatriation on economic, political and religious grounds.14 In the context of the perestroika policy of 1989, Meskhetian Turks were for the second time displaced from their habitual place of residence in Uzbekistan. Because of the inter-ethnic clashes with the local Uzbek population and in the Fergana Valley, seventy-four thousand Meskhetian Turks were, in a very short span of time, evacuated to Russia, Kazakhstan and Azerbaijan.
Initially, those who left for Azerbaijan could not secure citizenship because local authorities registered them as refugees and thus barred them from naturalization. But taking into consideration close linguistic and cultural ties, Azerbaijan’s legal authorities amended their citizenship law and enabled the majority of refugees to naturalize in a very short period of time. The statelessness cases of Meskhetian Turks in Azerbaijan were not reported by international organizations or the local government.15
The small number of Meskhetian Turks who still remained in Uzbekistan could secure local citizenship due to the zero-option principle of Uzbek nationality law. Similarly, Kazakhstan’s zero-option based nationality law further granted its citizenship to Meskhetian Turks.16 On the other hand, those who were sent to Russia suddenly came up with a set of practical problems which barred them from naturalization.17
Although the previous citizenship law in Russia made a generous provision on granting nationality to all former USSR residents, the local authorities frequently refused propiska and citizenship to Meskhetian Turks.18 The absence of propiska further
gazette, November 11, 2011; http://www.rg.ru/2011/11/10/pasport.html [accessed on February 13, 2014]; The Decree of the President about amendments to the Provisions about the Order of consideration of questions regarding acquisition of citizenship of the Russian Federation, No.1391; October 19, 2011 (published and entered into force on October 24, 2011;
13 Those deported composed around 120,000 individuals.
Andrea C. Armstrong, “Being Recognized as Citizens: A Human Security Dilemma in Central Asia and the Caucasus”. Commission on Human Security, November 2002, 13;
14 Ibid, while the vast majority of the native population in Georgia are orthodox Christians, the Muslim Turkish speaking populations’ influx is associated with fears of violence and instability;
15 UNHCR, Global Report 2001, “Regional Overview: Eastern Europe”, 379; 16 Refer to Country studies on Kazakhstan and Uzbekistan for detailed concept.
17 UNHCR, Memorandum 1997, “Forcible Population Transfers, Deportations and Ethnic Cleansing in the CIS: Problems in Search of Responses”, (1997); Yunusov, Arif. Meskhetian Turks: Twice Deported Peoples, Institute of Peace and Democracy and Open Society Institute-Azerbaijan. Baku, Ch. 5.4. 2000; 18 The 1991 law, art 13, All citizens of the former USSR with permanent residence on the territory of the
entailed heavy fines, an inability to find employment, and a lack of the access to social services. It came out later that Russian regional authorities considered Meskhetian Turks as foreign nationals because of technical considerations. As the authorities did not cancel their residence permit (propiska) prior to the deportation from Uzbekistan in 1989, they automatically were considered as Uzbek nationals in the independence period because of the zero-option principle.
After unsuccessful citizenship applications in other Russian regions, hunger strikes and addressing the migration authorities, Meskhetian Turks received vague promises to have their situation investigated and be afforded a positive decision on their citizenship status. Those promises disappeared after failed talks between the authorities of Russia, Uzbekistan and Armenia on facilitating the repatriation and integration of Meshketians.19 By 2000, most of them became stateless in Russia, while those in Georgia remained as refugees.20
The problem of Meskhetian Turks attracted lots of criticism from such organizations such as the UNHCR and the Council of Europe.21 International actors persistently pointed to the human rights violations in the context of the denial of citizenship rights. Alternatively, the absence of citizenship led to high vulnerability including unemployment and restrictions on owning private property. Moreover, the lack of political representation heavily affected the interests, and civil and political rights of mentioned group.
In order to address the problem of Meskhetian Turks, the US authorities launched an immigration program which offered simplified visa procedure with further naturalization. It has been reported that the USA consulates received a large number of
Russian Federation on the day the present Law took effect shall be deemed Russian Federation citizens, unless, within one year of this date, they declare their unwillingness to be in the Russian Federation citizenship;
19 There is one regional agreement arranging for the repatriation of peoples deported during Soviet times, including the Meskhetian Turks. All CIS countries except for Georgia signed the CIS Treaty on Formerly Deported People – also known as the Bishkek Agreement - in October 1992. (For an unofficial English translation of the Bishkek Agreement, see UNHCR, IOM, OSCE, Report of the Regional Conference, 167-70) The Agreement condemned the deportation and forced resettlement of peoples as “totalitarian” and “a crime against universal humanitarian principles. Yet, the Treaty remains a sign of good intentions, rather than a plan of action. Cited from Andrea C. Armstrong, “Being Recognized as Citizens: A Human Security Dilemma in Central Asia and the Caucasus”, Commission on Human Security, November 2002, 16;
20 US Committee for Refugees. 2002. Country Report: Georgia. Accessed online: http://www.refugees.org/world/countryrpt/europe/georgia.htm
21 Council of Europe. 1999. Opinion No. 209 Georgia’s application for membership of the Council of Europe Parliamentary Assembly; Accessed online:
http://stars.coe.fr/Documents/AdoptedText/TA99/eopi209.htm and International Organization on Migration.
UNHCR Memorandum. Forcible Population Transfers, Deportations and Ethnic Cleansing in the CIS: Problems in Search of Responses, (September 29, 1997);
applications from Meskhetian minorities in Russia and other states of the former USSR. Almost nine thousand Turks, resettled to Krasnodar Krai of Russian Federation in 1990, could successfully apply for the USA embassy and get a permanent residency. After the program provided a necessary quota for immigrants, the reports of statelessness ceased to appear.22
The present paper has taken a closer look at citizenship policy from an historical approach in order to demonstrate the complexity of the problem Russian lawmakers came up against. Being once and still remaining as a state which unified around itself many states with various ethnicities and languages, the Russian Federation has also undergone various territorial changes during the Soviet era and after it. Taking this into consideration, at present Russia faces various historical facts which result in its changing approach to the citizenship policy. The Crimean peninsula and its entire population, which composed a part of the RSFSR until 1954 (that year it was given over to the Ukrainian SSR) and which was returned back in March 2014 by means of a referendum, but which was not recognized by the majority of states, is a clear example of such historical facts. There is, however, still a list of such territories where the Russian speaking population composes a majority and Russia might have claims on those territories basing on such historical facts.
22 Jamestown Foundation, “Meskhetian Turks: Ten Years On”, Eurasia Daily Monitor Volume, 10 Issue: (November 27, 2013) 214; available at: http://www.refworld.org/docid/5296fd8b4.html [accessed 2 March 2014];
