Forced imposition of Russian nationality for Ukrainian nationals in Crimea, and transfer to the Russian Federation for completion of a prison sentence

Facts

The Committee’s Views in this case represent an important pronouncement on questions related to the imposition of nationality and the rights of individuals following the occupation of Crimea by the Russian Federation. The authors of the communication are nationals of Ukraine, and were detained at a remand center in Crimea when it came under the occupation of the Russian Federation in 2014. Notably, the Committee considered that nationality constitutes an important component of one’s identity and that protection against arbitrary or unlawful interference with one’s privacy includes protection against the forceful imposition of a foreign nationality. In assessing these and other claims raised by the authors, the Committee’s Views highlight not only the intersection of nationality with the rights guaranteed under the Covenant, but the restrictions on the retroactive application of criminal law of a State following its occupation of new territory.

The authors of the communication are Roman Bratsylo, Valery Golovko, and Sergey Konyukhov, and all are nationals of Ukraine. The authors were detained at a remand centre in Crimea when it came under the occupation of Russia in February and March of 2014. Russia subsequently adopted a law proclaiming Crimea to be part of its territory, and Russian law began to be enforced in Crimea from 1 April 2014. Under this law, nationals of Ukraine and stateless persons who were permanent residents of Crimea automatically obtained Russian citizenship, and those who did not wish to become Russian citizens could opt out by personally presenting a declaration to a Federal Migration Service office within one month—i.e. between 18 March and 18 April 2014. However, the instructions on this procedure were only issued on 1 April 2014, and only two such offices had been established in Crimea by 9 April 2014. In addition, persons in detention were not notified of the nationality-related changes, and the few who found out about this law were not allowed to opt out.

Mr. Bratsylo was on trial for criminal offenses when the occupation began, and his detention was extended on new charges under the criminal code of the State party. He was sentenced and transferred from Crimea to the State party to serve his prison sentence. Mr. Golovko and Mr. Konyukhov were convicted and sentenced for offenses under the Ukrainian Criminal Code, and appealed in December 2013. On 31 July 2014, their appeals were considered by a court of appeal established by Russia, and the prosecutor moved to reclassify their charges under the Russian criminal code. Mr. Golovko submitted an unsuccessful cassation appeal. Still, following another cassation appeal from the prosecutor to the Supreme Court of the Republic of Crimea, their sentences were reduced by six months. Mr. Konyukhov and Mr. Golovko were transferred from Crimea to a prison in a province of the State party, and neither discovered that they had become Russian citizens until after the deadline to opt out.

The authors claim that the State party violated their rights under article 9 of the Covenant because their detention, after the beginning of the occupation of Crimea, was arbitrary—namely, because the Russian Federation does not have jurisdiction to execute sentences handed down by Ukrainian courts. In addition, the authors argue that their expulsion from Crimea to Russia to serve their prison sentences violated their rights under article 12 of the Covenant, which confers the right to stay in one’s own country and contains a prohibition against forceful removal or expulsion from the territory of one’s nationality. The authors also claim that Russia violated their rights under article 15 by applying its criminal legislation to them retroactively, as well as their rights under article 26 of the Covenant by imposing Russian citizenship on the authors and transferring them to the State party, which resulted in a negative impact on residents of Crimea who identify as Ukrainian. The authors also refer to article 65 of the Fourth Geneva Convention on the Protection of Civilians in Areas of Armed Conflict, which states that the penal provisions enacted by the occupying Power are not to come into force before they have been published and brought to the knowledge of the inhabitants in their own language. Finally, Mr. Golovko and Mr. Kunyukhov claim that the imposition of Russian citizenship on them had a negative effect on their private lives, forcing them to be loyal to Russia and conferring in them a new identity linking them to an aggressor State, in violation of article 17 of the Covenant. Although Mr. Golovko and Mr. Kunyukhov initially claimed a violation of article 16 of the Covenant (recognition as a person before the law), they withdrew this part of the claim.

Admissibility

The Committee noted that both the authors and the State party acknowledged that the Russian Federation exercises effective control over the territory of the Crimean peninsula, which engages the State party’s jurisdiction for the purposes of the Covenant and the Optional Protocol. The Committee noted the withdrawal of the authors’ claim under article 16 and did not examine it. The Committee concluded that there were no effective remedies that the authors could have pursued concerning their claims under articles 9, 12, 15, 17 and 26 of the Covenant, and, accordingly, that the Committee was not precluded from examining them in the present communication. The Committee therefore considered that the authors’ claims under articles 9, 12, 15, 17 and 26 of the Covenant were admissible, noting that Mr. Bratsylo has not invoked a claim under article 17 of the Covenant.

Merits

The Committee noted that the authors’ claims under article 9 and article 15 of the Covenant were closely linked, because they claimed that the State party applied its criminal legislation to them retroactively, which led to their arbitrary detention and conviction. The Committee noted that arrest or detention authorized by domestic law may nonetheless be arbitrary. The Committee noted that the crimes for which the authors were sentenced by the State party’s domestic courts were not committed in its territory or against citizens of the State party, that there was no international agreement that would have allowed the State party to prosecute the authors or to execute decisions of Ukrainian courts, and that it was the Criminal Code of Ukraine that was in force in the territory of Crimea at the time of the commission of the crimes.

The Committee further noted that the Covenant explicitly prescribes that no derogation can be made from article  15 of the Covenant, which sets forth the principle of legality in the field of criminal law. The Committee recalled that the Covenant applies in situations of armed conflict to which the rules of international humanitarian law are also applicable, and that both spheres of law are complementary. It referred to the Fourth Geneva Convention protecting the rights of civilians in areas of armed conflict, including articles 65 and 67 thereof, which confirm the principles of non-retroactivity of penal law. The Committee concluded that the detention of Mr. Bratsylo, starting from 16 April 2014, and Mr. Golovko and Mr. Konyukhov, starting from 31 July 2014, when new charges against them were brought under the State party’s domestic law, and the retroactive application of the State party’s criminal law were arbitrary and constituted a violation of the authors’ rights under articles 9 (1) and 15 (1) of the Covenant.

The Committee further considered that the transfer of the authors from Ukraine to Russia to serve their prison sentences was arbitrary and thus amounts to a violation of their rights under article 12 (4) of the Covenant. The Committee noted the State party’s submission that it considers Mr. Golovko and Mr. Konyukhov to be Russian citizens only, and that they cannot be transferred to Ukraine because the withdrawal of citizenship from a person who is currently serving a prison sentence is prohibited. The Committee concluded that the authors have established that Ukraine is their own country within the meaning of article 12 (4) of the Covenant, and, per General Comment No. 27, the concept of an individual’s own country is not limited to nationality in a formal sense. The Committee reasoned that a State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country, and the same applies in situations of forced imposition of nationality.

The Committee considered that nationality constitutes an important component of one’s identity and that protection against arbitrary or unlawful interference with one’s privacy includes protection against the forceful imposition of a foreign nationality. As to Mr. Golovko and Mr. Konyukhov, the Committee considered that the refusal procedure only allowed those wishing to opt out of Russian citizenship 18 days to do so. Mr. Golovko and Mr. Konyukhov were told that the deadline had passed when they attempted to refuse citizenship, and were told that national legislation prohibited them from renouncing their citizenship while serving a prison sentence. The Committee further noted the lack of information as to whether Mr. Golovko and Mr. Konyukhov were duly informed about the right to refuse Russian citizenship before the applicable deadline. The Committee therefore considered that the procedure for opting out of acquiring Russian citizenship and the short time frame within which Mr. Golovko and Mr. Konyukhov could have opted out constituted a violation of their rights under article 17 of the Covenant.

With respect to Mr. Golovko and Mr. Konyukhov’s claims under article 26, the Committee noted that the State party had failed to provide reasonable justification to explain why the automatic naturalization applied only to citizens of Ukraine, or stateless persons with permanent residence in the territory of Crimea or the city of Sevastopol. In the absence of convincing explanations, the Committee considered that the differentiation of treatment received by Mr. Golovko and Mr. Konyukhov, by way of their automatic naturalization on the basis of their national origin, was not based on reasonable and objective criteria, and therefore constituted discrimination on the ground of national origin under article  26 of the Covenant. The Committee further noted that States parties may have a legitimate interest in the transfer of prisoners to avoid overcrowding in certain prisons; however, such transfers cannot be carried out with disregard to the disproportionate consequences that they can have for members of protected groups. The Committee further noted that the Fourth Geneva Convention requires that sentences be served in the territory under the State party’s effective control. Mr. Golovko’s, Mr. Konyukhov’s, and Mr. Bratsylo’s subsequent transfer from Crimea to the State party, despite their protected status, violated their rights under article 26 of the Covenant.

The Committee concluded that the facts disclosed a violation of the rights of Mr. Bratsylo under articles 9 (1), 12 (4), 15 (1) and 26 of the Covenant, and of Mr. Golovko and Mr. Konyukhov under articles 9 (1), 12 (4), 15 (1), 17 (1) and 26 of the Covenant.

Recommendations

Considering that the authors have already served their prison sentences and been released, the State party should, inter alia: (a) make full reparation to individuals whose Covenant rights have been violated; (b) provide the authors with adequate compensation; (c) eliminate the consequences of the imposition of Russian citizenship on Mr. Golovko and Mr. Konyukhov; (d) ensure that all the authors have the possibility of returning to their own country; and (e) take steps to avoid similar violations in the future, including by reviewing its legislation on citizenship and the retroactive application of the criminal law to the territory of Crimea to ensure that it is in compliance with the Covenant.

Implementation

Deadline for implementation. 27 September 2024