The Stateless Person: Saakashvili’s Chances to Restore Citizenship

Lawyer’s Point of View: Saakashvili has relatively good chances to prove that decision of Ukrainian authorities was disproportionate, and in breach of due process requirement and, thus, unlawful

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The scandal around Saakashvilli and his loss of Ukrainian citizenship became one of the major political events this summer. Media often mentions it as a typical case of selective justice and political persecution. Experts share mixed opinions. The more information appears in media, the less clear is an overall impression.

Did Mikheil Saakashvili sign a citizenship application spread by media? State officials offered no commentary regarding specific grounds for the loss of the citizenship. Nor did they publish their decision. Did Saakashvili lose his citizenship because he failed to mention criminal proceedings against him in Georgia? What is that mysterious “new” information in his criminal cases received by Ukrainian Security Service? Was Saakashvili aware of this information before he applied for citizenship? Did he intentionally conceal it? Does he have any other foreign citizenship? Answers to these questions are matters of fact. As such, they should be duly established in the Court proceedings, because they directly impact legal standing of Mikheil Saakashvili.

This article makes an attempt to bring clarity to this case by discussing conflicting positions. For this purpose, we assume that the information published in media is correct and claimed facts are true. I.e. the signature belongs to Mikheil Saakashvilli, he doesn’t have citizenship of any other state, and the “new information” obtained by Ukrainian Secret Services, if any, relates to the criminal cases publically known since 2014.

Position of the state

Ukraine has strong formal grounds to support the legitimacy of the Presidential Decree of July 26, 2017. States traditionally have broad discretion in defining the limits and access to nationality if national laws are consistent with the principles of international law. [1]The body of international law governing the matters of nationality was developed as a response to refugee crisis and mass atrocities of the World War II. Article 15 of the Universal Declaration of Human Rights  (UDHR) now recognizes the right to nationality as a fundamental human right and proscribes arbitrarily deprivation of nationality.  This principle is further elaborated in other international and regional legal instruments, including the European Convention on Nationality  (ECN) and relevant guarantees under ICCPR and ECHR.

The right to nationality became a ground for the developing UN legal framework concerning stateless persons, namely 1954 Convention relating to the Status of Stateless Persons and 1961 Convention on the reduction of statelessness. Both conventions and the ECN codify state’s obligation to eliminate and prevent statelessness. State Parties should at all times refrain from depriving an individual of her/his nationality if, as a result, the person will become stateless. There is a single exception, however, both in Article 8 (2b) of 1961 Convention, as well as Article 7 (1b) of the ECN [2], when nationality has been obtained by misrepresentation or fraud. This exception is not uncommon in State practice, for example in the USA or the Netherlands.

Ukraine has ratified the ECN and acceded to the two Statelessness Conventions. International standards relating to the matters of nationality are incorporated in the national legislation. Article 25 of the Ukrainian Constitution provides that “[a] citizen of Ukraine shall not be deprived of citizenship.” This provision is commonly interpreted as precluding arbitrary deprivation of citizenship, while renunciation and loss of citizenship are considered distinctive concepts. Article 4 of the Constitution specifies that Ukrainian citizenship is regulated by law. The law of Ukraine “On Citizenship” lists grounds for the loss of citizenship in Article 19 and, among them, names “acquisition of Ukrainian citizenship [by foreign national] by means of fraud, deliberate misrepresentation or false documents.” Standard citizenship application forms contain a conventional clause that applicant certifies all information as true and he/she is not subject to any pending litigation or investigation in a foreign jurisdiction.  

Saakashvilli position

Mikheil Saakashvili in his public statement claims that he did not lose his Ukrainian citizenship, but was arbitrarily deprived of one contrary to Ukrainian Constitution.

Regardless of stateless status, Mr Saakashvili has a right to file a complaint with the court [3] and to have a legal representative during the proceedings. The choice of forum and the range of strategies during the litigation are broad.  The substantive scope of arbitrariness in the cases of deprivation of nationality contains two key elements: the prohibition against discrimination and the prohibition against statelessness.

In Mikheil’s public address he infers that his case has a clear political motivation on President’s side. Under Article 9 of the 1961 Convention, a state may not deprive a person of nationality on political grounds. Major human rights instruments (Art 2 UDHR, Art 2 ICCPR, Art 2 ICESCR, Art 14 ECHR) list “political opinion” as a prohibited ground for discrimination. Thus, Mikheil might claim that he was stripped of citizenship due to discrimination based on his political opinion (e.g. breach of Art 14 taken in conjunction with Article 8 and 10 of the ECHR). The similar claim was brought to the Supreme Administrative Court of Ukraine by Sasha Borovyk . However, in discrimination cases an applicant has to demonstrate that the State had no objective and reasonable justification for the difference in treatment. Since Ukrainian authorities had a formal ground to claim the loss of citizenship by Mikheil, this legal defense may be vulnerable.

In the context of the prohibition against statelessness the key tests defining arbitrary deprivation are standards of due process, necessity, proportionality, and reasonableness.

Mikheil may argue that President’s Decree was arbitrary based on the lack of due process and procedural fairness. Article 8 (4) of the 1961 Convention provides that not only deprivation of citizenship must happen in accordance with the law, but also the State is required to provide for a person a right “to a fair hearing by the Court or other independent body.” It has been reported that the composition of the Constitutional Commission has been hastily changed before reaching a decision in the case of Saakashvili. The documents haven’t been published in an accessible manner and apparently were not handled to Mikheil and his representatives immediately after this decision was made. These facts casts doubt regarding fairness and transparency of this decision. Mikheil lost his citizenship when he was abroad and was banned from entering Ukraine. This fact may qualify as an obstructed access to justice in breach of the right to a fair trial. It might even be seen as deprivation of nationality resulting in de facto expulsion.

In 2014 the general prosecutor of Georgia filed criminal charges against former President Mikheil Saakashvili. If we assume that the signature that allegedly belongs to Mikheil Saakashvili is authentic, the Ukrainian government has a solid formal ground to claim that Mikheil lost his Ukrainian citizenship based on misrepresentation regardless of the fact that such loss renders him stateless. In accordance with Article 106 (26) of the Ukrainian Constitution, President adopts decisions on the termination of citizenship of Ukraine. Hence, President’s Decree of July 26, 2017 is seemingly in compliance with the national and international law.

Another strong argument in Mikheil`s favor is based on the requirement of reasonableness. [4] The State can legally deprive an individual of nationality if he/she deliberately concealed crucial information about his/her identity. However, there should be a clear link between the misrepresentation and acquisition of citizenship. [5] Although concealment of a criminal conviction for a criminal offense clearly falls under the definition of  “misrepresentation” and “fraud”, to matter in Saakashvili’s case such concealment should be a significant factor in the acquisition of nationality. [6]  The criminal charges against Mikheil Saakashvili have been filed in 2014. The general prosecutor of Georgia appealed to the General Prosecutor’s Office of Ukraine with a request for the extradition of Mikheil Saakashvili in February 2015. Ukraine has rejected this request. The information has been publicly available and reported by major media outlets. Ukrainian authorities thus were or should have been well aware of these criminal investigations. Apparently, they have chosen to disregard them, because 4 months later Mikheil Saakashvili became a Ukrainian citizen. Accordingly, now Ukraine is estopped from relying on concealment of criminal proceedings by Mikheil, as this information has been openly available and has not been regarded a significant factor restraining the acquisition of nationality.

The principle of necessity commends a balancing approach even when fraud and misrepresentation are proven.  Recommendation No. R (1999) 18 to the ECN states that a State “should not necessarily deprive of its nationality persons who have acquired its nationality by […] false information or concealment of any relevant fact.”  A State should evaluate relevant circumstances, including “the gravity of the facts”, as well as  “genuine and effective link of these persons with the State concerned”.  The gravity of the “concealed” information is significantly overrated since the information was permanently in a public eye and Georgian criminal cases were seen as politically motivated by Ukrainian authorities. The effective link between a leader of a Ukrainian political force Saakashvili and Ukraine is also traceable. Thus, depriving Mikheil of Ukrainian citizenship was not absolutely necessary.

Similarly to the principle of necessity, the proportionality requirement establishes balance between public interest and individual’s right to nationality. In case of Rottman v Freistaat Bayern ECJ ruled [7] that withdrawal of the nationality acquired by deception does not constitute a breach of law on a condition that the decision to withdraw observes the principle of proportionality. In particular, the Court specified that “the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.” Mikheil Saakashvili was deprived of his Ukrainian citizenship in a messy procedure when he was abroad and in circumstances when recovery of Georgian nationality is highly unlikely.

Conclusion

Ukrainian government has strong formal grounds to claim that no breach of international or national law occurred as a result of withdrawal of Ukrainian citizenship acquired by Mikheil Saakashvili. However, a closer look at this case reveals that this formal ground may not be sufficient on its own to prove that no violation occurred. Mikheil Saakashvili has right to subject President’s Decree to judicial review under the guarantee of fair trial in Ukraine and in international institutions. Moreover, Saakashvili has relatively good chances to prove that decision of Ukrainian authorities was disproportionate, and in breach of due process requirement and, thus, unlawful.

Notes:

[1] Article 1 of the Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137; Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, 7 February 1923, para. 41: “The question whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question; it depends on the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of this Court, in principle, within this reserved domain… it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law.”

[2] Article 7 (1b) of the ECN specifies that the exception applies when nationality was acquired “by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant”.

[3] Article 16, Convention Relating to the Status of Stateless Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117; Article 26, Constitution of Ukraine, 28 June 1996.

[4] UNCHR, UN Human Rights Committee (HRC), CCPR General Comment No. 16: Article 17, 8 April 1988, para 4.

[5] UNHCR, Expert Meeting – Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”), March 2014, para 58-59: “In order for fraud or misrepresentation to be a basis for the deprivation of nationality (whether or not statelessness results), there must be causality between the fraud or misrepresentation and the grant of nationality. In other words, the fraud must be material to the acquisition of nationality. Deprivation is not permissible if the nationality would have been acquired even if the misrepresentations or concealment had not occurred. […] Deprivation would not be justified if the person was not aware and could not have been aware that the information provided during naturalization was untrue.”

[6] Explanatory Report to the European Convention on Nationality, Strasbourg, 1997 (ETS No. 166), para. 61(1). This report is one of the official means for interpreting the Convention under of Article 31(3) of the 1969 VCLT.

[7] Additional ECJ cases to consider regarding the conditions for the acquisition and loss of nationality: Case C-369/90 Micheletti and Others, paragraph 10; Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 37-40.

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