Forceful imposition of foreign citizenship as discrimination and breach of the right to respect for private life

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Introduction

On 27 March 2024, the UN Human Rights Committee (UN HRC) adopted an important decision concerning human rights violations resulting from the application of Russian law in Crimea after its annexation by Russia in 2014. In Bratsylo and others v. Russia (Bratsylo case), the UN HRC found that the applicants’ detention and criminal convictions were based on the retroactive application of Russian law and therefore violated Arts 9(1) and 15(1) ICCPR (paras 8.2-8.6). No basis existed for the application of Russian law in Crimea at the time of the commission of the alleged crimes in 2010 and 2013, before Russia took control over Crimea. After their conviction, the applicants were transferred from Crimea to serve their sentences on the territory of the Russian Federation. The UN HRC considered that this transfer violated the applicants’ right to remain in and enter their own country enshrined in Art 12(4) ICCPR (paras 8.7-8.9). Another, rather novel, aspect of the decision is the HRC’s recognition that the forceful imposition of Russian citizenship on the Ukrainian citizens of Crimea amounts to discrimination and a breach of the right to respect for private life (paras 8.10-8.17).

Claims of violations of international law on account of automatic imposition of Russian citizenship in Crimea have also been brought by Ukraine in inter-state cases before the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). This blog post examines in detail the UN HRC’s findings regarding the forceful imposition of Russian citizenship and compares them to the treatment of similar issues by the ICJ and ECtHR.

The UN HRC’s views

On 21 March 2014, shortly after establishing control over Crimea, the Russian Federation adopted the Federal Constitutional Act No. 6-FKZ automatically proclaiming all Ukrainian citizens and stateless persons permanently residing in Crimea to be Russian citizens as of 18 March 2014 (the date of the so-called admission of Crimea into Russia). In theory, a one-month grace period ending on 18 April was granted for those wishing to opt out of Russian citizenship. In practice, this period was even shorter. The information about the refusal procedure became available only on 1 April 2014, and migration services handling such refusals were established in Crimea even later (para. 8.14). Given the very short opt-out period, the UN HRC questioned whether residents of Crimea could make an informed and free choice regarding their citizenship, especially those held in places of detention (para. 8.12).  Indeed, two of the applicants in the Bratsylo case were made Russian citizens without their knowledge. They could not, however, renounce their Russian citizenship after they had found out about it: the opt-out deadline had expired, and Russian law did not permit the renunciation of citizenship while serving a prison sentence (para. 8.14).  

In the applicants’ view, the automatic conferral of Russian citizenship and the subsequent impossibility of renouncing it forced upon them a new identity associated with loyalty to the aggressor state, which had a negative impact on their private lives (paras 3.2, 8.10). The UN HRC recognised that “nationality constitutes an important aspect of one’s [social] identity” and therefore of one’s privacy, defined as the “sphere of a person’s life in which he or she can freely express his or her identity” (para. 8.10). The protection against arbitrary and unlawful interference with one’s privacy guaranteed in Art 17 ICCPR encompassed protection from forceful imposition of a foreign nationality (ibid).

In addition to constituting a breach of Art 17 ICCPR, the forceful imposition of Russian citizenship on two of the applicants in Bratsylo also amounted to discrimination on the grounds of national origin (paras 8.14, 8.19). The policy of automatic imposition of Russian citizenship applied only to persons with a particular nationality status, namely Ukrainian citizens or stateless persons permanently residing in Crimea (paras 8.15-8.16). To be sure, a differentiation in treatment does not amount to discrimination “if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate” under the ICCPR (General Comment No. 18, para. 13). But singling out persons of Ukrainian nationality permanently residing in Crimea for automatic imposition of Russian citizenship was not grounded in reasonable and objective criteria (paras 8.16-8.17). Russia’s submission that the aim was to ‘forge a link’ and ‘stable legal connection’ between the permanent population of Crimea and the Russian Federation did not provide a ‘reasonable justification’ for the differential treatment of Ukrainian citizens (paras 4.12, 8.17).

The UN HRC’s conclusion on the discriminatory character of the automatic imposition of Russian citizenship on the Ukrainian nationals residing in Crimea differs from the ICJ’s position on a similar matter.

ICJ’s judgment

In Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), the ICJ considered a narrower issue than the one before the UN HRC: whether the citizenship regime introduced by Russia in Crimea in 2014 amounted to racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The CERD concerns specifically racial discrimination and, therefore, the list of prohibited grounds of discrimination in Art 1(1) CERD is narrow and exhaustive compared to Art 26 ICCPR. That said, both the CERD and ICCPR prohibit discrimination based on ‘national origin’. However, as discussed elsewhere (here, here and here), the ICJ understands the term ‘national origin’ in the CERD as not covering nationality, meaning citizenship. In contrast, the CERD Committee reads the term as including nationality, similarly to the UN HRC’s interpretation of ‘national origin’ in Art 26 ICCPR in the Bratsylo case. Furthermore, the prohibition of racial discrimination in the CERD, unlike the general prohibition of discrimination in the ICCPR, does not cover differential treatment between citizens and non-citizens (Art 1(2) CERD).

In any event, Ukraine’s claim before the ICJ did not concern discrimination based on nationality. Rather, Ukraine alleged discrimination against Ukrainian and Crimean Tatar ethnic communities on account of the implementation of a citizenship law proclaiming permanent residents of Crimea to be Russian citizens (Memorial, paras 455-476; Ukraine’s Reply, paras 544-549). However, the ICJ viewed the automatic imposition of Russian citizenship in Crimea only as a “difficulty” in “choosing between the legal consequences of adopting Russian citizenship or retaining Ukrainian citizenship” (Judgment, para. 287). These consequences, the ICJ reasoned, “flowed from the status of being either a Russian citizen or a foreigner” which “applied to all persons over whom the Russian Federation exercises jurisdiction regardless of their ethnic origin” (ibid). The ICJ concluded that the difference in treatment based on this status did not amount to racial discrimination under the CERD (ibid).

The ICJ’s view that the difference in treatment between citizens and non-citizens does not amount to racial discrimination under the CERD is supported by the express wording of Article 1(2) of the CERD. The preceding analysis, however, seems to be simplified to match the conclusion. The ICJ reduced what was, in reality, a lack of genuine choice and coercion to acquire Russian citizenship (OHRHC, 2014 Report, paras 125-129 & 2024 Report, paras 5-9) to a mere difficulty in choosing the legal consequence attached to the status as a Russian citizen or a foreigner. The ICJ’s rather succinct analysis does not engage with Ukraine’s submissions, based, inter alia, on evidence collected by UN bodies, regarding the forceful nature of the automatic imposition of Russian citizenship on residents of Crimea (Ukraine’s Reply, paras 552-556). Moreover, the ICJ ignores the fact that distinction based on the status of a Russian citizen or a foreigner is the result of Russia’s own actions. It is because of Russia’s implementation of its laws on the territory of Ukraine that Ukrainians in Crimea became either Russian citizens or foreigners. The ICJ seems to accept without question the paradox resulting from Russia’s actions, namely the ‘foreigner’ status of Ukrainian citizens living on the sovereign territory of Ukraine, their own state. Equally surprising is the lack of serious consideration of the argument that the system of automatic and forceful imposition of Russian citizenship, while neutral on its face and applicable to all residents of Crimea, had a discriminatory effect on the rights of ethnic Ukrainians and Crimean Tatars (Ukraine’s Reply, paras 547-548, 558-564). This is all the more so since these complaints clearly fall within the scope of the CERD which, as the ICJ itself noted, does cover any ‘application of citizenship laws that results in an act of discrimination based on national or ethnic origin by purpose or effect’ (Judgment, para. 286).

The issue of forceful imposition of Russian citizenship is also litigated by Ukraine in a case against Russia before the ECtHR. As explained below, Ukraine’s complaint in the ECtHR case, like the Bratsylo case, concerns an alleged violation of the right to respect for private life.

Inter-state case before the ECtHR

Before the ECtHR, Ukraine complained about the violation of the right to respect for private life guaranteed in Article 8 on account of the “unlawful automatic imposition of Russian citizenship” on Ukrainian nationals and stateless persons in Crimea in 2014.

The ECHR guarantees neither a right to nationality nor a right to renounce a nationality. But arbitrary refusal to grant nationality or arbitrary deprivation of nationality has, in some instances, been recognised by the ECtHR to fall within the ambit of the right to respect for private life in Art 8 ECHR (Guide on Article 8, para. 314). An arbitrary refusal of a request to renounce citizenship can also raise an issue under Art 8 ECHR (Riener v. Bulgaria, para. 154). An important criterion is whether such arbitrary refusal entails practical or legal consequences that have an adverse impact on a person’s rights or private life (ibid, para. 155).

In Ukraine v. Russia re Crimea, the ECtHR declared admissible Ukraine’s complaint about the automatic imposition of Russian citizenship. The ECtHR confined its examination to the issue of the operation of the opt-out system. In practice, this opt-out system provided only a limited or, in some instances, virtually non-existent possibility to refuse Russian citizenship (Decision, paras 126-131 & 432-435). The matter has not yet been decided on the merits. It, therefore, remains to be seen whether Ukraine succeeded in convincing the ECtHR that the procedural deficiencies in the opt-out system and the impact on individual rights of the impossibility of renouncing Russian citizenship are sufficiently serious to amount to a violation of Article 8 ECHR.

Concluding remarks

Forceful imposition of citizenship on the population of an annexed territory is a novel issue in human rights law. The decisions examined in this blog show that the impossibility of renouncing a citizenship acquired against one’s will can raise issues under the right to respect for private life guaranteed in Art 17 ICCPR and Art 8 ECHR. Automatic imposition of citizenship based on a specific nationality can also amount to discrimination prohibited in Art 26 ICCPR. Whether such measure constitutes racial discrimination as defined in the CERD is less certain.

Russia continues its practice of forceful imposition of Russian citizenship in the territories of Ukraine occupied following the full-scale invasion of 2022. The OHCHR reports that Russia has intensified pressure, including through the denial of medical and humanitarian assistance, on the population in the occupied territories to obtain Russian citizenship and passports (paras 115-122). Russia ceased to be party to the ECHR on 16 September 2022. Therefore, complaints of forceful imposition of Russian citizenship that took place after this date cannot be brought before the ECtHR. But as the Bratsylo case discussed in this post shows, individuals forced into Russian citizenship can seek and potentially obtain redress before the UN HRC, at least in the form of recognition of breach of their rights.

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