On March 31, 2014, Deputy Andrei Lugovoy, a member of the Liberal Democratic Party, introduced a bill to the State Duma making the failure to provide information about foreign citizenship (nationality) to immigration authorities a criminally liable offense. IMR Advisor Ekaterina Mishina analyzes this bill and comments on Russia’s history of parliamentary attempts to criminalize dual citizenship.

 

 

Though this be madness, yet there is method in ’t.
William Shakespeare, Hamlet

Dual citizenship has become one of the most talked-about issues in Russia this spring. This session, the parliament will review two bills on the subject. One bill introduces a simplified procedure for granting Russian Federation citizenship to foreign citizens and stateless persons recognized as native Russian speakers. This proposal is quite good and certainly deserves our attention, but today, we will focus on the second bill, which was introduced by the beloved Liberal Democratic Party (LDPR) member Andrei Lugovoy, sponsor of this year’s greatest legislative hit—the bill on pretrial blocking of websites. Deputy Lugovoy is exuberant: people haven’t had time to recover from his previous masterpiece before the introduction of the new one.

On March 31, Lugovoy’s bill No. 485228-6 proposed the following changes:

  • Russian citizens who have a second nationality will have the responsibility of notifying (in writing) the appropriate migration authorities within a month of receiving citizenship.
  • Article 330.2, “Failure to Comply with the Obligation to Notify of the Citizenship (Nationality) of a Foreign State,” is to be added to the Russian Criminal Code; such a violation will be punishable by a fine of up to 200,000 rubles or that amount of wages or other income for a period of up to one year, or by compulsory labor for a term of up to 400 hours.
  • Other appropriate changes will be made in Russia’s Criminal Code Procedure.
  • Russian citizens who have acquired citizenship (nationality) from a foreign country before these legislative innovations enter into force will be required “notify in writing within three months from the date of the entry into force of this Federal Law the residence territorial body of the federal executive body which [is] authorized to exercise functions of control and supervision in the field of migration.”

The explanatory note on this bill appears to have been written by people who did not take the trouble to refresh their knowledge of the field of constitutional law and simply used Wikipedia. Otherwise, it is impossible to explain the following wording, found on the note’s first page: “The citizen of the Russian Federation who has the citizenship (nationality) of a foreign state is in a political and legal relationship with both the Russian Federation and the relevant foreign state.” The phrase “political and legal relationship of the citizen and the state” carries a whiff of mothballs—it is outdated and no longer used in modern Russian constitutional law.

The authors also apparently neglected to acquaint themselves with the criminal law. Otherwise they would have known that the criminalization of acts is based on a number of qualifying characteristics, such as culpability, punishability, and public danger (Article 14 of the Criminal Code). Part 2 of this article expressively provides that “an action [inaction] is not considered a crime, although it can formally contain any characteristics of an offense under this Code, but because [such an action] does not represent any public danger due to its insignificance.” Public danger is one criteria used in defining a crime that constitutes a socially dangerous act that harms or threatens to harm the individual, society, or the state. The explanatory note does not detail what social danger results from a Russian citizen’s failure to inform the relevant authorities about his or her possession of another state’s citizenship. And how exactly Russian society and the Russian state will suffer from this silence also remains unclear.

The problem of dual citizenship has haunted domestic legislators for a long time. Thus, Paragraph 3.1 of Article 4 of the federal law “On Basic Guarantees of Electoral Rights and the Russian Federation Citizens’ Right to Participate in Referenda” (No. 67–FZ of June 12, 2002) reads: “Citizens of the Russian Federation with foreign nationality or a residence permit or other document confirming the right of residence of a citizen of the Russian Federation on the territory of a foreign state do not have the right to be elected. These citizens have the right to be elected into local government, if it is stipulated by an international treaty of the Russian Federation”. This article’s provision, which denies individuals holding another country’s passport one of the most important political rights held by Russian citizens , is not in accord with Parts 2 and 3 of Article 55 of the Russian Constitution, according to which:

  • Laws that abrogate or derogate the rights and freedoms of men and citizens shall not be passed in the Russian Federation
  • The rights and freedoms of men and citizens may be limited by federal law only to the extent that it is necessary for the protection of the constitutional order, morality, health, and the rights and lawful interests of other persons, national defense, and state security

The provisions of the aforementioned law also do not accord with Part 4 of Article 15 of the Constitution of the Russian Federation, which states that the “generally recognized principles and norms of international law and international treaties of the Russian Federation are the principal part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those provided by law, the rules of the international treaty are to be applied.” These provisions also contradict Article 3 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 4 of the Convention itself.

But this law has been enforced very actively. In 2013, IMR Senior Advisor and member of the People's Freedom Party Vladimir Kara-Murza was banned from participating in the elections for the Yaroslavl Regional Duma. The basis for this decision was his British passport, which the logic of the new law contends would in the long term have become a threat to the health and morals of the citizens of Yaroslavl region, not to mention to the security of the country.

The idea of criminalizing at least some aspects of dual citizenship has long been a preoccupation of the LDPR. Back in 2000, the faction’s pride and glory Alexei Mitrofanov, prepared and submitted draft law No. 27778-3 to the State Duma, in which he proposed criminalizing the acquisition of another state’s citizenship by a Russian Federation citizen. This document caused a stir because of its unprofessional approaches, and some legal experts (including me) began to scrutinize carefully the LDPR’s legislative initiatives.

In 2002, the Third State Duma considered the dual citizenship bill. The Law Committee then said that the bill contradicted the provisions of Article 6 of the Constitution, noting that it is difficult to define the acquisition of another country’s citizenship as a socially dangerous act.

Shortly thereafter, Deputy Mitrofanov proposed adding the following language to Article 136 of the Criminal Code: “Acquisition by a person of the nationality of another state while temporarily staying or residing outside the Russian Federation, while retaining the citizenship of the Russian Federation, shall be illegal.” This wording, if you look closely, is not too different from some of the provisions of the notorious Article 64 of the 1960 Criminal Code of the Russian Soviet Federative Socialist Republic (upheld by the Russian Federation Constitutional Court on December 20, 1995), which labeled the refusal to return from abroad or the act of fleeing abroad as treason.

It is noteworthy that the Third State Duma considered this bill in the first reading in October 2002 and responded very sensibly. The Law Committee said that the bill contradicted the provisions of Article 6 of the Constitution, noting that it is difficult to define the acquisition of another country’s citizenship as a socially dangerous act. The Legal Department of the State Duma decided that “the proposed project establishing criminal liability for actions aimed at a Russian citizen’s acquisition of the citizenship of another state raises serious objections” and was unacceptable. This conclusion was signed by Professor Vladimir Isakov, the brilliant lawyer who headed the department.

One part of the Legal Department’s conclusions is applicable to the bill of March 31, 2014. The department stated: “According to Article 14 of the Criminal Code of the Russian Federation, the main characteristic of a crime is an act of social endangerment. The actions that the project proposed to criminalize in our opinion do not constitute public danger primarily because under the first part of Article 3 of the Russian Federation Law ‘On Citizenship of the Russian Federation,’ the people who hold nationality of the Russian Federation are not recognized as citizens of another state, unless otherwise approved by an international treaty of the Russian Federation. Accordingly, the actions that the laws of the Russian Federation recognize as legally insignificant can hardly entail criminal responsibility.”

These claims are relevant today in respect to Part 1 of Article 6 of the federal law “On Citizenship of the Russian Federation” (No. 62-FZ, May 31, 2002), which states: “A citizen of the Russian Federation who also holds another nation’s citizenship is considered by the Russian Federation as only a citizen of the Russian Federation, except in cases provided for by international treaty of the Russian Federation or federal law”.

Other federal laws that regulate dual citizenship are “On State Policy of the Russian Federation in Respect of Compatriots Abroad” (see Part 4 of Article 7) and the already-mentioned “On Basic Guarantees of Electoral Rights and Russian Citizens’ Right to Participate in Referenda.” According to the former law, “persons with dual citizenship, one of which is Russian, cannot be restricted in their rights and freedoms and are not exempt from obligations arising from citizenship in the Russian Federation, unless otherwise stipulated by an international treaty of the Russian Federation or federal law”. The latter law mentions persons with dual citizenship only in the context of passive suffrage.

Separate international agreements on the settlement of dual citizenship have been signed only with Turkmenistan and Tajikistan. Thus, under the current legislation, persons with dual citizenship can be recognized as Russian citizens only if they also hold Turkmen or Tajik citizenship. Mr Lugovoy should do his homework better.

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