Last month, Russia’s Constitutional Court ruled that there is no lack of clarity in legal provisions that make it possible to strip a person of their Russian citizenship in instances where the person has no other nationality and would be left stateless. ENS member ADC Memorial argues that the ruling contradicts previous decisions.
On 11 March 2021, Russia’s Constitutional Court concluded that there is no lack of legal clarity in provisions of the law that make it possible to strip a person of their Russian citizenship. A request to review the constitutionality of Part 2 of Article 22 of the Federal Law “On RF Citizenship” was submitted by the Supreme Court of Karelia in connection with the high-profile case of Aleksey Novikov, who was stripped of his Russian citizenship after a conviction under “terrorism” charges, which was the only citizenship he held. After losing his citizenship, the Ministry of Internal Affairs required him to leave Russia, even though he cannot cross the border without documents and there is no country that would be able to accept him as its citizen.
Aleksey Novikov’s case and Article 22 of Russia’s citizenship law
Aleksey Novikov was born in the Ukrainian Soviet Socialist Republic in 1969 and has been living in Russia since 1987. He never held Ukrainian citizenship, but had a Soviet passport and was granted Russian citizenship in 2005. In 2017, he was charged with preparing to participate in the activities of a terrorist organisation for posts he made online. However, Novikov stated in court that he confessed under torture during the investigation. The Moscow District Military Court ignored this statement and found him guilty, sentencing him to four years in prison in February 2017. Novikov was released in 2019, but in April 2020 the Main Directorate of the Ministry of Internal Affairs for Moscow rescinded his Russian citizenship and required him to leave Russia by June 30, 2020, even though this demand obviously could not be fulfilled as his lack of nationality meant there was no country that could accept him, and it is a crime to cross the border without documents.
The Ministry of Internal Affairs’ local department in Karelia explained that it decided to revoke his citizenship because Part 1 of Article 22 of the Federal Law “On RF Citizenship” provides for this “if the decision is based on false information knowingly communicated by the applicant.” Moreover, in accordance with Part 2 of Article 22 of this law, conviction under “terrorism” charges “is equivalent to a court establishing that a person has knowingly communicated false information in relation to their obligation to comply with the Constitution and laws of the Russian Federation.”
Article 22 refers to a suspected criminal who acquired Russian citizenship with the secret goal of committing crimes in Russia and disrupting the constitutional order, and who knowingly communicated false information by taking the oath and accepting the obligation to comply with Russia’s Constitution and laws. This article only applies to people who acquired Russian citizenship by means other than birth, and it does not consider how long a suspected criminal lived in Russia from the time they became a citizen to the time they allegedly committed a crime. So, if 20 years have passed, the law assumes that this person spent all those years harboring criminal intentions and hid these intentions when they became a citizen.
Novikov became a Russian citizen in 2005 and was convicted 12 years later in 2017. Even if we assume that he was rightfully convicted (even though he confessed under torture), it is much more likely that he did not have any criminal intentions when he originally became a citizen, and so committing a crime cannot be equated to communicating false information.
But this is not the only strange thing about Article 22 of the citizenship law. This provision actually contradicts Article 20, which does not permit a withdrawal from Russian citizenship if a person “does not hold another citizenship and has no guarantee of acquiring one,” i.e., if a person will become stateless. Furthermore, it violates the Constitution, whose Article 6 reads that Russian citizenship “shall be one and equal, irrespective of the grounds of acquisition”, meaning that citizens by birth and citizens like Novikov who acquire citizenship later have equal rights, and that a Russian citizen cannot be stripped of citizenship. It also contravenes Article 54 of the Constitution, which establishes that the law cannot have retrospective effect. Moreover, Novikov’s acquisition of Russian citizenship and conviction of the “provision of false information” both took place before 1 September 2017, when the deprivation of citizenship for certain crimes was adopted in law.
Constitutional Court delivers ruling contradicting previous decisions
After making its way through several courts, the constitutionality of Part 2 of Article 22 of the citizenship law stating that a conviction under “terrorist” charges equates to the communication of false information became the subject of an appeal filed by the Supreme Court of Karelia with the Constitutional Court at the request of Novikov’s lawyer. In its ruling, the Constitutional Court confirmed that Article 22 corresponds to the law. It argued that the revocation of conferred Russian citizenship because of a failure to meet the conditions for citizenship “is not a measure of responsibility”—i.e, is not a punishment—and “is not deprivation of citizenship, but a measure permitted by the Constitution” and “by its legal nature is constitutional and remedial.” According to the Constitutional Court, this is exactly why the constitutional provision on retrospective effect is not applicable, as retrospective effect only applies to laws “establishing or aggravating liability”. The Court also believes that people who were conferred citizenship after the 2017 amendments should not receive different treatment from those who became citizens before the amendments were made.
This ruling, which legitimizes Part 2 of Article 22 of the citizenship law and, consequently, the Main Directorate’s decision to strip Novikov of citizenship, became the subject of criticism right away, including from ADC Memorial. Deprivation of citizenship is an additional punishment. It is absurd to assert that committing a crime after citizenship is acquired is equivalent to false information when there is no evidence at the time of acquisition that the person was planning a crime or that they might be convicted in the future.
The Constitutional Court of the Russian Federation once considered a complaint against Article 22 of the Law on Citizenship of the Russian Federation – and also rejected it. That time, in 2019, the legal community welcomed the ruling, which stated that citizenship can be retained even if a citizen submitted false documents or false information while obtaining citizenship. The court listed the circumstances in favor of retaining citizenship: the presence of legal grounds for obtaining citizenship, the duration of residence in Russia, and the presence of stable ties with the Russian Federation.
The decision to strip Novikov of his citizenship also contravenes amendments to the law “On the Legal Status of Foreign Nationals in the Russian Federation” that were adopted in February 2021, due to the fact that the decision left Novikov without a nationality and he has no other country to which he can travel. These amendments were aimed at regularising stateless people, including those who are the subject of a decision to revoke Russian citizenship; those who were found undesirable (including people who have completed a sentence and people who have outstanding convictions); and those who face expulsion or deportation but do not have a country that can take them.
These amendments were a delayed and inadequate response from Russia to the strategic decision of the European Court of Human Rights (ECtHR) in the case of Kim v. Russia. In this case, the court directed Russia to take general measures to ensure that stateless people can gain legal status and stop them being placed in foreign national detention centers (FNDCs).
When preparing these amendments, legislators did not take into account the point made by human rights defenders that the procedure for establishing identity must be improved because the law cannot operate without it. Stateless people still face insurmountable difficulties in their quest to achieve legal status. Without legal status, stateless people cannot access education, employment, social benefits and healthcare services, the justice system, or the voting booth. Without citizenship or IDs, stateless people can be held for breaking migration rules and kept indefinitely in an FNDC awaiting deportation or expulsion, which is of course impossible.
The Constitutional Court’s own ruling in the case of stateless person Noé Mskhiladze also contradicts this recent ruling. In the Noé Mskhiladze ruling, the Court pointed to the need to abide by the principal of balanced and objective consideration of all the corresponding circumstances of a case when an expulsion order is adopted in relation to a stateless person in order to avoid arbitrary violation of that individual’s personal autonomy. It also called on the legislative branch to create a special immigration status for stateless people whose expulsion order cannot be enforced because no state is prepared to receive them. Even though almost four years have passed since the Constitutional Court issued its ruling in the case of Noé Mskhiladze, no mechanisms for regularising stateless persons, or issuing them documents have been created.
A further key aspect of both the ECtHR ruling in the Kim case and the Constitutional Court ruling in the Mskhiladze case has unfortunately not yet been reflected in Russian law and practice. Judicial control over the legality and length of confinement in an FNDC has not been introduced, so people who cannot be expelled or deported anywhere are left indefinitely in worse than prison-like conditions with no access to legal assistance. The corresponding amendments to the Administrative Code have been under review since 2017 but have yet to be adopted.
The problem of revocation of citizenship in Russia is not new: it recalls the Soviet practice of persecuting dissidents. Revocation of citizenship in modern Russia occurs en masse: law-abiding people suddenly find out that due to errors in the procedure, their passport had been “issued illegally”. However, the recognition of the deprivation of citizenship as a “constitutionally permissible measure” opens the door to even more arbitrary interpretation of the law and aggravates the risks of statelessness.