On 12 June the European Court of Human Rights (ECHR) declared a violation of the right to private life (Article 8) of two individuals who were left stateless in Russia for several years as a result of bureaucratic deficiencies not attributable to them. The judgment strengthens even further the Court’s earlier case law on the connection between nationality rights, statelessness, and article 8 of the ECHR (see previous ENS blogs on Hoti v Croatia & Genovese v Malta).
Facts of the case in the context of a large-scale passport confiscation policy in Russia
During the dissolution of the Soviet Union and until 2002 the procedures for becoming a Russian citizen were poorly regulated. Civil servants granting Russian citizenship, especially in consular representations of Russia located in other former USSR republics, were often inadequately informed about applicable requirements. As a result, tens of thousands of people believed they had become Russian through a processes the legitimacy of which was doubted years later, mostly because of the civil servants’ failures to include the new citizens into a general register of Russian citizens. After the new Law on Russian Citizenship came into force in 2002 which clarified procedure for the acquisition of Russian citizenship, the Federal Migration Service developed a large scale policy of confiscating or not renewing passports for those whom they could not find in the appropriate databases. This policy lasted until around 2010 and affected tens of thousands of individuals, including the two applicants in Alpeyeva and Dzhalagoniya v. Russia.
Ms Alpeyeva applied for Russian citizenship in 1994 at the Russian embassy in Bishkek, Kyrgyzstan, where she resided at that time. She was informed that her application was successful, and received a stamp in her Soviet passport indicating that she is a Russian citizen. Soon thereafter she moved to Russia, and in 2001 she received a Russian internal passport, which is a document that proves identity and citizenship within Russia, but is not an international travel document. For crossing international borders Russian citizens need a different passport, the so-called ‘abroad-passport’ (заграничный паспорт), which Ms Alpeyeva applied for in 2006. During this application procedure her internal passport was seized and destroyed, with the explanation that there were no records of her in the database of citizens.
The second applicant held a USSR passport issued in Georgia. In 1998 he was issued with an ‘insert’ (вкладыш) into his Soviet passport specifying that he was a Russian citizen. In 2002 he received a Russian internal passport. His citizenship status was first put in doubt in 2010 when he tried to register his new residence, and later that year his request to renew his passport was denied on the basis that he was not registered in the database of citizens.
In 2008 and 2011 respectively the applicants appealed their cases to the ECHR, and had to wait for almost a decade for the judgment. In the meantime, Russia has amended its citizenship laws in 2013, largely resolving the large-scale problem relevant to this case, which included recognition of both applicants as citizens and furnishing them with appropriate documentation. The Court, however, did not drop the case after these developments, stating that ‘the fact that the applicants were eventually granted Russian citizenship could not in itself be considered to constitute sufficient redress for the fact that, over the course of several years, each of the applicants had been a stateless person without a valid passport’. The judgment is a welcome input for the scholarship and practice on nationality law. The remainder of this blog highlights three highly topical issues that have been addressed by the judgment, and considers how the Court’s position may affect relevant legal scholarship and practice. Specifically, I look at
- the issue of quasi-loss of citizenship,
- the relation between legal identity, statelessness and access to rights,
- the question to what extent stateless individuals can be held responsible for problems with their nationality documentation.
Revocation of citizenship vs. finding that citizenship was never acquired in the first place
In paragraph 110 the Court notes that the principles it developed regarding nationality and article 8 ECHR also apply to cases that are neither about acquisition, nor about loss, but about a finding that a person has never acquired citizenship, the so-called situations of ‘quasi-loss’ of nationality. Quasi-loss can occur for example if nationality was acquired from a parent who later turns out not to have been the real parent, or if a law is applied incorrectly by the responsible civil servant and the mistake is later ‘corrected’. While deprivation of nationality, where the person indisputably is a national and a state is taking that nationality away, is often furnished with strict procedural guarantees, persons who simply find out that their nationality was just a 'mistake' are often notoriously unprotected from the consequences of such a discovery. Some countries provide protection against such disappearances of nationality, but many others do not. It is therefore very valuable to see an ECHR judgment explicitly equate a case of quasi-loss to cases of deprivation or non-acquisition of nationality in the context of violation of Article 8, and hold the state responsible for the consequences of quasi-loss on the human rights situation of the applicants.
Establishing interference: hardships, deprivation of legal identity, and statelessness
The finding that the facts of the case amounted to interference with the applicants’ right to private life partially rests on the Court’s earlier case of Smirnova v. Russia where it established that possession of a passport is essential for everyday functioning in Russia, in particular ‘when performing such mundane tasks as exchanging currency or buying train tickets, and […] also required for more crucial needs, such as finding employment or receiving medical care’. In Alpeyeva and Dzhalagoniya, the Court finds that the same interference occurred, going even further. In particular, the confiscation of passports entailed ‘consequences affecting [the applicants’] social identity far more fundamentally’ due to the applicants being deprived of any legal status in Russia and becoming stateless.
The fact that the Court determines lack of a legalized status and the situation of statelessness to be a form of interference with private life is significant, and raises a number of questions about the relationship between statelessness, legal status, and access to rights. Are statelessness and lack of a legal residence permit per se a ground for establishing interference with Article 8 rights, or does the lack of legal status or statelessness need to come with more practical hurdles in functioning within society? If the latter, then how severe do such hardships need to be? Another question that arises is whether interference only occurs if a person previously held legal residence status or a nationality of the interfering state and the state takes some action to withdraw existing privileges, or if instead it can also occur if the person has never had any claim to legal residence or nationality in the first place.
Establishing arbitrariness: the applicants were not at fault
The interference was, according to the Court, lawful enough and was not even reproachable for lack of procedural guarantees. However, it was still found to be arbitrary due to the government failing to resolve a wide-scale problem for years after it has been acknowledged.
In establishing the arbitrariness of the interference with Article 8, the Court assigned particular importance to the lack of the applicants’ culpability in their ordeal, a fact not disputed by the government. The judgment repeatedly emphasized that while the original acquisition of nationalities by the applicants may indeed not have complied with all the formal procedural requirements that were in force at the time, the relevant oversights are in no way attributable to the applicants. Lack of culpability, combined with the hardships that the government’s oversights and subsequent actions brought upon the applicants, seems to be at the core of finding a violation.
Statelessness and lack of documentation often results from a series of actions by state authorities not attributable to affected persons. The Alpeyeva and Dzhalagoniya case is conveniently simple because all the relevant events are attributable to authorities of only one state. It would be interesting to consider how the findings in this case, and in particular the focus on the lack of applicants’ fault, could apply to situations which involve authorities of multiple states arbitrarily interfering with Article 8 rights. Even when the lack of any faults on the part of the individuals is uncontested, to what extent can the state where an individual tries to enjoy private life be expected to compensate for administrative oversights of another state the individual may also have links to? Does the judgment in Alpeyeva and Dzhalagoniya also imply that even when the state causing bureaucratic problems is different from the state where an individual is enjoying private and family life, the lack of culpability of the individual in being able to obtain appropriate documentation should be a significant factor, at least in the context of the ECHR right to a private life?