Russian passportization of Donbass: possible approaches to counteraction

On July 17th, 2019, Vladimir Putin issued a decree extending the list of persons who can use the simplified procedure for obtaining Russian citizenship to all residents of Donetsk and Lugansk regions. According to the Constitution of the Russian Federation (Article 61), it guarantees its citizens protection and defence beyond its borders. The status of the case and possible approaches to counteracting in the article by the partner and attorney-at-law at Legal Alliance Company.

Yurydychna Gazeta, №33-34, dated August 20th, 2019

Oleksii Bezhevets, attorney-at-law, partner at Legal Alliance Company.

Russia continues to issue its passports officially and passively (granting citizenship) to Ukrainians living in the occupied eastern lands.

Are such Russian actions aggressive towards Ukraine? Undoubtedly! Do such actions threaten Ukraine's national security? Absolutely! Accordingly, we have the next stage of the hybrid conquest of Ukrainian lands, the invasion in our sovereignty and the assault on our independence. What can Ukraine do against these aggressive actions?

International sanctions on Russia

Undoubtedly, yes. The scale of these sanctions must be steadily increased. It is a job for our diplomats, politicians and friends of Ukraine abroad. In addition, there are now statements that Canada, the US, a number of other countries will not recognize Russian passports issued to residents of Lugansk and Donetsk regions. The Council of Europe has stated that it is monitoring the situation and is considering the option of not recognizing such Russian passports. Lithuanian diplomats argue that if the EU fails to agree on a mutually acceptable position, Lithuania will implement such measures unilaterally.

Also in early August, a statement was made by Estonia, promising not to recognize Russian passports issued after April 24th, 2019 to ORDILO residents, unless the person concerned had Russian citizenship by that time. These measures are quite positive for Ukraine. However, is this enough to stop the aggressor? Is such a hybrid attack adequate? It seems that this is not enough.

To deprive of Ukrainian citizenship

The society speaks about it. It is categorical and supposedly simple, but there are some nuances. First, such actions would be contrary to international legal norms, conventions and generally the principles that have prevailed in the field of human rights. This is unacceptable for a civilized country that is integrated into the rule of law. Secondly, what do we, as a state and a nation, benefit from such an action? Do we encourage our own citizens to avoid acquiring Russian citizenship? Maybe we will somehow influence the actions of the Russian Federation? Hardly. So, this is not the way out.

Not to recognize

It is believed that such actions of the Russian Federation are worthless, so they have no legal consequences and in no way affect Ukrainian citizens. Therefore, it is possible to declare at the state level the position "We do not recognize!" and to do other urgent matters that are missing. However, this is hardly a valid position. To lose the territories of the state and to lose the best sons and daughters at war every week – isn’t it too high a price for inaction in previous “pre-war” years? In itself, the declaration of non-recognition of documents issued by the aggressor state and of the non-recognition of the acquisition of the nationality of the aggressor state (without any legal formulation of such state position) does not entail any legal consequences. So it's more a PR move (after all, it's good) and a political statement, but not a solution.

Implement the consequences of the voluntary acquisition of nationality of the aggressor state

Obviously, we cannot directly influence the aggressive actions of the Russian Federation (to forbid issuing passports to Ukrainian citizens). Accordingly, we need to create such mechanisms of counteracting "passportization" that will make the acquisition of Russian citizenship extremely unattractive for Ukrainians, wherever they are, and the consequences of such opposition inconvenient for the Russian Federation. What can it be?

First, the deprivation of the opportunity for citizens of Ukraine who voluntarily acquire Russian citizenship to hold any public and elected positions, as well as the right to vote in elections to representative bodies of all levels. Changes at the legislative level should be made to the relevant laws on public service, elections, social security and pensions. It should be noted that in the comprehensive draft law submitted in 2017 by S. Melnychuk (Reg. No. 6178 of 14.03.2017, not put for vote) such changes were written out, so the basis has already been laid, there is something to work on.

At the same time, it is necessary to set up a system for monitoring the voluntary acquisition of citizenship of the Russian Federation (for a start, like the mechanism of the Peacemaker resource), and finally to assign this function to a state body (for example, the SSU or the State Migration Service). Yes, it is not easy, but it is possible to develop the criteria and implement the mechanism.

What to do with the "voluntariness" of acquiring Russian citizenship? After all, citizenship can be acquired in different circumstances (for example, the birth of a child). It should be borne in mind that the situation is assessed when a person shows his will and takes a number of actions (signs and submits documents, etc.) for obtaining citizenship of the Russian Federation.

If laws of the Russian Federation require the person to perform certain actions to obtain citizenship and eventually the person receives the citizenship of the Russian Federation, we can believe that he did such actions voluntarily.

It is also necessary to keep in mind that another case should be regulated, namely when a Ukrainian receives citizenship of the Russian Federation (receives a Russian passport) in the period after the relevant norms of the Ukrainian legislation come into force. We assume that the effect of the law in time should be directed only to relationships that occur after it enters into force

Secondly, to establish administrative liability for acquiring the citizenship of the aggressor country. Corresponding changes should be made to the Code of Administrative Offenses. To consider as sanctions the possibility of the deprivation of the right to pensions and other social payments (in the manner of special confiscation). Special reason to release a person from administrative liability is to provide for voluntary withdrawal from Russian citizenship. In this case, it is desirable that this would be public and humiliating to the aggressor. In order for people not to be hostages to the authorities of the Russian Federation, to provide an opportunity to make a declaratory statement of withdrawal, and in the future not to take any action that results from the citizenship of the Russian Federation. If a person acquires Russian citizenship again, being exempt from administrative liability, criminal liability should be applied for these cases.

Thirdly, to develop and implement a set of legal, social and economic measures that will encourage / stimulate persons who, at the date of entry into force of the relevant changes to the legislation already have citizenship of the Russian Federation, to renounce citizenship of the Russian Federation simply and without negative consequences for themselves. For example, to introduce a free legal aid service for the registration of relevant applications for citizenship of the Russian Federation - to make it convenient and accessible remotely. Also, with the involvement of the public to implement a number of material and intangible incentives for persons who renounce their citizenship of the Russian Federation - through a system of partner services, discounts on goods / works / services, etc.

What practical steps can be taken now?

First, monitoring. Start with the public one, simultaneously developing and launching the state one. Systematically cover these activities by media. Information messages are no less important than regulations. Ukrainians, wherever they are, should understand that citizenship of the Russian Federation will not be good to them.

Secondly, to adopt in the second reading the draft laws of Ukraine, which were already adopted in the first reading as early as 2009: «On Amendments to Some Legislative Acts of Ukraine (Responsibility for Hiding the Fact of Staying in the Citizenship of Another State or Acquiring such Citizenship)» No. 3102 of September 11th, 2008 and «On Amendments to the Law of Ukraine On Citizenship of Ukraine (Concerning the Elimination of Conflicts Enabling Dual Citizenship)» No. 2752 of September 5th, 2008. Lawmaking is a long and painstaking process. However, there are already two bills that were adopted in the first reading. While their final acceptance is clearly not a panacea, it is both a proper message to the society and a real legal framework that will benefit the current situation.

Third, to consolidate all constructive and pro-Ukrainian developments from the previously submitted eight bills on citizenship issues currently on the Verkhovna Rada committees, to take into account the above proposals, and to unite the efforts of the authors to develop and pass a law that addresses the issues raised.