“Order” or human rights, what is more important?

21.04.2017
Эта запись так же доступна на: Russian

Order” or human rights, what is more important? This was the question posed by the lawyer representing the interests of Noe Mskhiladze (with the support of ADC “Memorial”) in the Constitutional Court of the Russian Federation. On April 18, 2017 the Constitutional Court considered an extremely important case involving dozens, if not hundreds of thousands of people.

Noe Mskhiladze is an apatride, that is a stateless person, who has become a victim due to legal gaps, which exist in Russian legislation. He was born in Georgia at the time when the Soviet Union still existed, but before the USSR disintegrated, he had moved to Leningrad, where he was educated and got married. He had never travelled outside of the Russian Federation since then, and his Soviet passport had never been exchanged for a Russian passport for various reasons. Georgia did not confirm that Mskhiladze had Georgian citizenship and had not issued a certificate for his return to his native country. Stateless persons such as Mskhiladze, who have no citizenship of any state are considered violators of the existing migration rules in the Russian Federation: they do not have documents that allow them to legally reside in the Russian Federation, as a result of this they are detained, courts order to expel them from the country, they are deprived of their liberty in temporary detention centers for foreign citizens. In fact, their detention there can continue for an indefinite period of time and without any purpose, since it is impossible to expel such persons to any other country. At the expiration of the two-year period prescribed by law for carrying out deportation, these persons are released from temporary detention centers, but they do not receive any documents that allow them to legally reside in the Russian Federation, so many are again deprived of their liberty for the purpose of deliberately impracticable deportation. The situation of the previously convicted stateless persons – and this is precisely the case of Mskhiladze – is exacerbated by the fact that by analogy with foreign citizens the Russian Ministry of Justice issues a ruling on the undesirability of their stay in the Russian Federation, they are again placed in the temporary detention center for foreign nationals for the purpose of further deportation, which cannot be carried out.

Mskhiladze’s lawyers have challenged the constitutionality of the two articles of the Russian Administrative Code (Articles 31.7 and 31.9), because of the lack of legal possibility to terminate administrative proceedings, since it is simply impossible to expel stateless persons, and because of the absence of a clearly defined period of imprisonment in the temporary detention centers for foreign nationals, as both foreigners having a valid citizenship of another country and stateless persons are placed there with the same vague formulation of “before expulsion”. It would seem that the situation is obvious: the purpose of depriving a person of his or her liberty in a temporary detention center for foreign nationals is to ensure further expulsion. But if this goal is unattainable, then keeping a person in prison conditions, without access to legal assistance and for an indefinite period, means a clear violation of the constitutional right to freedom, legal protection and human dignity.

However, a most interesting discussion that took place in the Constitutional Court showed that representatives of various state bodies, who deal with the problem of stateless persons, from the legislators in the State Duma to the bailiffs directly dealing with expulsion from the country, believe that there are no violations of the Constitution as such, but that only the rights of an individual applicant in a particular case are violated, and besides that the applicant himself is largely to blame for the situation. There is no way in the Russian law to terminate the expulsion procedure, which is impracticable in this case, and people continue to be imprisoned for periods of two years at the temporary detention centers for foreign nationals without any purpose. Both the representatives of the State Duma and the Federation Council agreed that the law treats foreign nationals and stateless persons in the same way, but at the same time they don’t see how this contradicts the Russian Constitution. After all, these people are violators! Until now, they go around with their Soviet passports, or even without any documents at all! This is a threat to the security of the state!

It all came to the point when the main subject of some speeches in the Constitutional Court hearings was not the systemic problem of the Russian legislation, but the personality and moral qualities of the applicant: he was told that he was not worthy of such a manna of heaven as the Russian citizenship! The representative of the Ministry of Justice firmly stated that once the applicant had been considered undesirable, the primary task of the legislator should be to devise a way of expelling offenders from the country, since we do not need citizens like them. Someone has also voiced an opinion that it was not necessary for Mskhiladze to leave for Georgia, as there are other countries in the world where he can go. The simple idea that without valid identity documents, it is impossible to cross the Russian border (this is a criminal offense), not to mention violations of the laws of other countries. However, for some reason this idea did not come to the representative of the Russian president, which had come up with such an extravagant proposal.

I would like to ask the speakers present at the hearings: What kind of persons you do want? Who is “desirable” for you? Is it any wonder that people, who do not have valid documents can not get a job, get legal income and pay taxes, can not rent houses in a legal and transparent fashion and register at their place of residence, do not have social support (pensions, benefits, free medical care), live below the poverty line? Do we expect that these people, excluded from society, placed on the brink of survival, will act like saints? Why, instead of facilitating the return of the former prisoners to normal life (in case of previously convicted persons without citizenship) the Ministry of Justice automatically decides on the undesirability of these people’s stay in the Russian Federation and, for lack of possibility of deporting them anywhere, they are again imprisoned in the temporary detention centers for foreign nationals? One of the victims of this practice, Viktor Nigmatulin, a prisoner of the Kemerovo detention center for foreign nationals, have summarized this perfectly: “A new category of people has appeared – unnecessary people!.. I think that one way or another the state can provide stateless persons with the opportunity to legally reside in the Russian Federation. At the moment there are no such opportunities, as a result of which stateless persons are subjected, it may be said, to repression. People are held in temporary detention centers for foreign nationals for months and in some cases for years! I think that this in itself is inexpedient, it leads to unjustified expenses for the state budget for keeping such persons”.

At the hearings in the Constitutional Court there were also accusations against stateless persons. Supposedly they themselves were to blame for violating the law and not legalizing themselves. However, one should not blame these people, who, like Mskhiladze himself, tried to resolve the problem of their status for years and decades. These people knocked on the doors of the Federal Migartion Service (FMS) (now the function was transferred to the Ministry of Internal Affairs), but they are refused to even apply for identity documents, let alone allowing to ask for citizenship. The Russian legislation on citizenship is extremely strict, the very procedure of acquiring citizenship is detrimental in many respects, and one of its important flaws is the absence of a special document certifying the identity of a stateless person. It would seem that if people are given a proper identity card, they would earn their living themselves, they would be able to come out of the shadows, to stop being marginalized. And the public safety will only benefit from this. But on the contrary, even the representative of the Federation Council, who was most sympathetic towards stateless persons among those who spoke at the Constitutional Court hearings, even he said that such an document should not be an ordinary residence permit (which would be a step towards obtaining citizenship), but some special document, whose holders must call at police stations on a regularly basis. Representative of the Ministry of Justice stated that deprivation of liberty of stateless persons was an absolutely justified measure, since their free status was “an additional threat to national security” (apparently, their existence was already dangerous in itself).

The problem of stateless persons was inherited from the USSR not only by Russia, but also by other post-Soviet countries. However, not all of them guard access to their citizenship in such a draconic way. For example, in Moldova old Soviet passports until recently were considered full-fledged identity documents, their exchange for new passports took place at public expense, and those who did not have time to exchange passports in time did not become stateless persons without citizenship, they only had to pay for registration of their documents. And Moldova, it would seem, has a reason to be overprotective, when it comes to its citizenship, as its citizens can freely travel to the countries of the European Union. But this is not the case.

However, the stateless persons residing in Russia, who only according to the official census data amount to more than 178,000 people (but in fact much more), are all potentially in the same shoes as Mskhiladze. They can be detained at any time for their “illegal” status, they can be imprisoned for two years in the temporary detention centers for foreign nationals and released from there with the same status of “illegal immigrants” and the risk of again being deprived of their liberty. Isn’t it shameful for Russia that after 25 years that have passed since the disintegration of the USSR, thousands of its residents are still in a state of being “legally invisible”, being deprived of many constitutional rights and facing the risk becoming prisoners?

The documented stories of stateless persons show that without valid documents one can somehow exist: working unofficially, using the support of relatives, renting housing without a formal contract, paying off bribes to the police when their documents are checked. True, they can’t get pensions and benefits. However, all this is possible only for some time until they are denounced by their neighbors, raided by the police (these raids usually have names like “Illegal migrant”), “cleaned up” before the sports championships or the Olympics (as was the case in Sochi, when stateless persons who lived in the city and its surroundings for decades were detained and put into temporary detention centers for foreign nationals en masse). In 2015 human rights defenders from Sochi published the stories of these rather ordinary people, who found themselves in a legal dead-end of the post-Soviet history. It is the state’s duty to get them out of this impasse, without any unnecessary references to “national security”.

ADC “Memorial” has been involved with the problems of stateless persons for many years. During the hearings in the Constitutional Court the case of “Kim v. Russia”, which had been won by the claimant in the European Court of Human Rights with the support of ADC “Memorial” in 2014, was repeatedly mentioned. If the ruling of the ECtHR in the case of Kim was observed by Russia, then perhaps it would not be necessary to raise this issue again in the Constitutional Court: the European Court had ordered Russia to take general measures to remedy the situation regarding deprivation of liberty of stateless persons, and such measures should include establishment of judicial control over the timing and expediency of placing stateless persons in the temporary detention centers for foreign nationals, establishment of an effective procedure for legalizing all stateless persons and issuing of valid documents for them in order to prevent new deprivation of liberty in the temporary detention centers.

However, no general measures were taken as of ADC “Memorial” published a detailed human rights report in 2016, which analyzed the sad consequences of ignoring ECtHR’s decision in the case of Kim. Among such consequences was the death of Vepkhviya Sordia, a prisoner of the St. Petersburg temporary detention center for foreign nationals in 2016, a stateless person who was placed into detention center again, because he could not use the legalization procedure after the first imprisonment period. At the hearings in the Constitutional Court, representative of the bailiff’s service called the death of detainee one of the “legitimate reasons” for stopping the expulsion procedure and this is exactly the case. We emphasize that the deprivation of liberty in temporary detention centers is not a punishment for a criminal offense or for an administrative offense, but merely an “interim measure”, whose goal is subsequent expulsion from the country. Mskhiladze has already served his sentence for past crimes, but in he stays in the temporary detention center for no reason.

ADC “Memorial” has informed the Council of Europe’s Committee of Ministers, which deals with monitoring of implementation of the ECtHR’s decisions about the absence of legislative changes that would aim to drastically change the fate of stateless persons in the Russian Federation. The Russian Federation, in turn, asked the court to stop overseeing the implementation of the decision in the Kim case, because in December 2017 it is expected that amendments to the Code of administrative offenses will be adopted, including the replacement of deprivation of liberty in the temporary detention center for foreign nationals with a milder restrictive measure not related to deprivation of liberty. However, for those who stay in overcrowded temporary detention centers for foreign nationals, the conditions of detention in which the ECtHR had found inhuman and degrading, changes are needed here and now. And in this respect recognition by the Constitutional Court that the existing order of things is unconstitutional would be very welcome.

The country of origin of Mskhiladze and thousands of other stateless persons is the Soviet Union. Russia has become its successor and must accept these people, give them legal status and full-fledged documents that allow them to live and work in Russia. This should be done immediately, without waiting for December 2017, when lawmakers, the Ministry of Internal Affairs, the Ministry of Justice and other bodies promise to introduce changes into the Code of administrative offenses. In addition, the problem of stateless persons is much wider than just deprivation of liberty with unenforceable expulsion. It is necessary to make the law on citizenship less strict, introduce an effective and humane procedure for legalizing those who have lived “in the shadows” for years. But even release of stateless persons from the temporary detention centers for foreign nationals without them risking being brought back in jail would be a grandiose achievement, since now thousands of stateless persons await a fair resolution of this problem by the Constitutional Court.

Olga Abramenko

Originally published on Radio Liberty’s blog

Photos from: http://udpnw.ru/proekty/konstitucionnyj-sud-rossijskoj-federacii/